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THE ARMY AND  THE  LAW 


COLUMBIA  UNIVERSITY  PRESS 
SALES  AGENTS 


NEW  YORK 

LEMCKE  &  BUECHNER 
30-32  West  27TH  Street 

LONDON 

HUMPHREY  MILFORD 
Amen  Corner,  E.  C. 

shanghai 

EDWARD  EVANS  &  SONS,  Ltd. 

30  North  Szechuen  Road 


THE ARMY AND THE LAW 


BY 


GARRARD  GLENN 

OF  THE  NEW  YORK  BAR;    ASSOCIATE  PROFESSOR  OF  LAW, 

COLUMBIA  university; 

AUTHOR  OF  "creditors'  RIGHTS  AND  REMEDIES" 


COLUMBIA  UNIVERSITY  PRESS 
1918 

All  rights  reserved 


V3S-0  0 


Copyright,  191 8 
By  COLUMBIA  UNIVERSITY  PRESS 


Set  up  and  electrotyped.         Published  July,  1918 


PREFACE 

This  book  deals  with  the  army  only  in  its  relation  to  the 
common  law  which  governs  the  general  public,  and  with 
the  soldier  only  in  so  far  as  his  activities  are,  in  point  of 
law,  of  interest  to  non-military  persons.  It  is  an  en- 
deavor simply  to  assemble  the  principles  of  law  which 
impose  duties  upon  the  civilian,  citizen,  or  enemy,  quite  as 
much  as  they  give  him  rights  which  the  army  must  observe. 
Hence  I  do  not  treat  of  the  rules  governing  the  internal 
affairs  of  the  army  except  in  so  far  as  they  bear  on  its  rights 
and  obligations  with  respect  to  people  who  are  not  members 
of  its  personnel.  For  the  same  reason,  I  have  avoided  men- 
tion of  the  laws  of  war,  and  matters  of  strict  international 
law,  beyond  such  passing  reference  as  might  be  necessary 
to  indicate  the  boundaries  of  the  jurisdiction  of  common 
law  courts.  Jurisdiction,  as  the  Supreme  Court  has  said, 
means  simply  the  power  to  decide  a  case ;  ^  and  many  con- 
troversies are  possible  with  respect  to  the  army  which 
common  law  courts  cannot  decide.  All  such  matters  I  have 
endeavored  to  classify  as  non-justiceable,  and  to  say  no 
more  about  them  than  might  be  necessary  for  purposes 
of  classification.  Such  is  my  appointed  path,  and  for  all 
deviations  from  it  my  apologies  are  tendered  in  advance. 

My  thanks  are  due  to  all  those  who  took  a  kindly  interest 
in  this  work  during  its  progress,  including  my  partners  and 
Dean  Stone  of  Columbia  Law  School.  My  brother-in-law, 
Colonel  S.  J.  B.  Schindel,  U.  S.  A.,  and  my  partner,  Mr. 
C.  R.  Ganter,  were  also  kind  enough  to  read  the  advance 
proofs  and  make  valuable  suggestions  thereon. 

Garrard  Glenn 
New  York,  July,  iqi8 

iThe  Fair  v.  Kohler  C,  228  U.  S.  22;   33  Sup.  Ct.  Rep.  410. 


CONTENTS 

Page 

I.    Introductory i 

II.   The  Constitution  of  the  Army 7 

III.  Military  Law  and  Military  Courts 27 

IV.  The  Army*s  Right  of  Self-Regulation   ....  43 

V.   The  Army  in  Its  Relations  with  the  Enemy  .    .  64 

VI.    Military  Occupation  in  Matters  of  Govern- 
ment    90 

VII.   Military  Occupation  in  Matters  of  Property  .  109 

VIII.   Relation  of  Soldier  to  Civilian  in  Time  of  Peace  126 

IX.    Relation  of  Soldier  to  Civihan  in  Time  of  War  142 

X.    Martial  Law  at  Home 157 

Table  of  Cases ;    .    .    .   .  191 

Index    . 195 


y'i-<        J 


I 

INTRODUCTORY 

The  protection  of  the  State  from  the  public  enemy, 
using  that  term  in  its  broadest  aspect,  as  distinguishing 
the  public  enemy  from  the  casual  malefactor,  has  always 
belonged  to  an  organized  force  of  armed  men  who  in 
their  collective  aspect  embody  the  physical  force  of  the 
nation.  This  implies  several  things.  First,  the  actions 
of  this  collective  body  must  be  governed  by  some  sort 
of  directions  issuing  from  some  power  of  State;  and 
for  convenience  these  directions  are  disseminated, 
through  repetition  or  amplification,  by  various  sub- 
ordinate agents  forming  part  of  the  force.  Hier- 
archy is,  therefore,  inseparable  from  the  idea  of  control. 
From  this  logically  flows  a  duty  of  obedience  to  these 
directions  on  the  part  of  the  various  members  of  the 
force.  ^    Finally,  an  army,  whether  created  for  a  par- 

1  The  following  expressions  from  the  Army  Regulations  contain  the  whole 
duty  of  man  in  this  respect: 

"Command  is  exercised  by  virtue  of  office  and  special  assignment  of 
officers  holding  military  rank  who  are  eligible  by  law  to  exercise  command. 
Without  orders  from  competent  authority  an  officer  cannot  put  himself  on 
duty  by  virtue  of  his  commission  alone,  except  as  contemplated  in  the  twenty- 
fourth  and  one  hundred  and  twenty-second  articles  of  war."  Art.  IV, 
Command. 

"All  persons  in  the  military  service  are  required  to  obey  strictly  and  to 
execute  promptly  the  lawful  orders  of  their  superiors. 

"Military  authority  will  be  exercised  with  firmness,  kindness  and  justice. 
Punishments  must  conform  to  law  and  follow  offenses  as  promptly  as  cir- 
cumstances will  permit. 

"Superiors  are  forbidden  to  injure  those  under  their  authority  by  tyran- 
nical or  capricious  conduct  or  by  abusive  language.    While  maintaining  dis- 


2  THE  ARMY  AND  THE  LAW 

ticular  purpose,  standing  as  a  skeleton  organization,  or 
with  all  its  cadres  filled,  is  a  necessity.  It  may  not  be 
a  permanent  institution  with  depots  and  headquarters 
in  time  of  peace,  but  if  it  be  dissolved  it  will,  in  case 
of  subsequent  need,  be  succeeded  by  another  body 
of  like  organization. 

It  is  obvious  that  the  existence  of  any  such  body, 
whether  regular  or  intermittent,  will  result  in  certain 
customs  being  more  or  less  recognized  as  governing  the 
conduct  of  the  members  of  the  force  in  matters  not  cov- 
ered by  express  directions  or  orders.  And  thus  a  system 
of  precedent,  custom  or  tradition,  call  it  what  you  will, 
evolves,  which  plays  its  part  in  the  government  of  the 
army. 

Such  a  body  of  law  will  naturally  vary  in  application  ac- 
cording to  the  activities  of  the  army.  In  short,  there  may 
be  a  military  law  governing  the  army  in  time  of  peace, 
and  an  additional  law  which  comes  into  existence  when 
the  activities  of  the  army  extend  into  the  field  of  war. 

cipline  and  the  thorough  and  prompt  performance  of  military  duty,  all  offi- 
cers, in  dealing  with  enlisted  men,  will  bear  in  mind  the  absolute  necessity  of 
so  treating  them  as  to  preserve  their  self-respect.  Officers  will  keep  in  as 
close  touch  as  possible  with  the  men  under  their  command  and  will  strive  to 
build  up  such  relations  of  confidence  and  sympathy  as  will  insure  the  free 
approach  of  their  men  to  them  for  counsel  and  assistance.  This  relationship 
may  be  gained  and  maintained  without  relaxation  of  the  bonds  of  discipline 
and  with  great  benefit  to  the  service  as  a  whole.    C.  A.  R.,  No.  35. 

"Courtesy  among  military  men  is  indispensable  to  discipline;  respect  to 
superiors  will  not  be  confined  to  obedience  on  duty,  but  will  be  extended  on 
all  occasions. 

"Deliberations  or  discussions  among  military  men  conveying  praise  or 
censure,  or  any  mark  of  approbation,  toward  others  in  the  mihtary  service, 
and  all  publications  relating  to  private  or  personal  transactions  between  offi- 
cers, are  prohibited.  Efforts  to  influence  legislation  affecting  the  army,  or  to 
procure  personal  favor  or  consideration,  should  never  be  made  except  through 
regular  military  channels;  the  adoption  of  any  other  method  by  any  officer 
or  enlisted  man  will  be  noted  in  the  military  record  of  those  concerned." 
Art.  I,  Military  Discipline. 


INTRODUCTORY  3 

Wherever  we  have  what  can  be  called  law  of  any  sort 
we  cannot  go  far  without  the  idea  of  its  enforcement,  by 
means  of  some  court  having  power  to  hear  anyone  ac- 
cused of  a  breach  of  the  law,  and  to  order  his  punish- 
ment in  case  he  is  adjudged  guilty.  The  army  could  not 
exist  without  that  power  any  more  than  a  court  could 
exist  without  the  self-protective  right  of  punishing  for 
contempt. 

The  proper  understanding  of  such  orders,  the  best 
interpretation  of  tradition,  and  the  wisest  discernment 
of  customs,  obviously  would  belong  to  those  who  are 
members  of  this  force.  It  would,  therefore,  seem  that 
courts  created  from  among  the  personnel  of  the  organi- 
zation should  be  left  alone  in  their  administration  of  its 
system  of  law.  Nor  has  it  ever  been  doubted  by  the 
common  law  that  entry  into  the  army  is  more  than  a 
matter  of  contract ;  it  is  a  change  of  status  on  the  part 
of  the  entrant,  and  means  his  subjection  to  the  laws  and 
customs  governing  the  army. 2  These  factors  make 
powerfully  for  segregation,  and  the  creation  of  a  system 
of  jurisprudence  administered  exclusively  by  military 
courts. 

There  is  such  a  system;  and  it  forms  no  part  of  that 
common  law  which  governs  the  community  at  large 
and  is  enforced  by  pourts  of  general  jurisdiction.  But 
the  law  governing  the  army  is  not  all  to  be  found  in  the 
decisions  of  military  courts,  the  Articles  of  War  or  the 
regulations  and  general  orders,  nor  yet  is  it  bounded  by 
military  tradition.  The  common  law  plays  its  part 
there  as  well,  so  important  a  part,  indeed,  as  to  make 

2  In  re  Morrissey,  137  U.  S.  157,  11  Sup.  Ct.  Rep.  57.  In  re  Grimley, 
137  U.  S.  147,  II  Sup.  Ct.  Rep.  54. 


4  THE  ARMY  AND  THE  LAW 

the  relation  of  our  military  establishment  to  the  law  of 
the  land  a  matter  of  distinct  interest  to  all  members  of 
the  public. 

To  define  this  relation  of  the  common  law  to  the 
army  will  be  the  function  of  the  ensuing  chapters.  At 
the  moment,  however,  it  would  seem  in  order  to  ask  why 
there  should  be  any  such  relation  at  all. 

The  answer  is  to  be  found  in  that  guiding  constitu- 
tional principle  which,  recognized  in  all  English  speaking 
countries,  is  expressed  by  a  great  English  writer  as 
amounting  to  the  reign  of  law.  It  involves,  to  follow  his 
thought,  two  principles,  first,  the  absence  of  arbitrary 
power  on  the  part  of  the  government,  and  second,  that 
every  man  is  subject  to  ordinary  law  administered  by 
ordinary  tribunals.^  While  the  entry  of  the  candidate 
or  recruit  into  the  army,  whether  by  way  of  his  receiving 
a  commission  or  becoming  enlisted  in  the  ranks,  in- 
volves a  consent  to  the  powers  of  the  army's  own 
courts,  that  consent  cannot  affect  the  rights  of  a  fellow- 
citizen  who  has  not  likewise  taken  on  himself  the  mili- 
tary estate.  To  that  extent,  therefore,  the  position  of  a 
soldier  is  defined  "by  the  principle  that  though  a  soldier 
is  subject  to  special  liabilities  in  his  military  capacity, 
he  remains  while  in  the  ranks,  as  he  was  when  out  of 
them,  subject  to  all  the  liabilities  of  an  ordinary 
citizen."^  This  statement,  be  it  noted,  is  not  quite  accu- 
rate, for,  as  we  shall  see,  the  definition  of  the  soldier's 

3  Dicey,  Law  of  the  Constitution,  8th  ed.,  pp.  183,  189. 

*  Dicey,  op.  cit.  282.  "Since  much  has  been  said  about  soldiers,  I  will 
correct  a  strange  mistaken  notion  which  has  got  abroad,  that  because  men 
are  soldiers  they  cease  to  be  citizens;  a  soldier  is  gifted  with  all  the  rights  of 
other  citizens,  and  is  bound  to  all  the  duties  of  other  citizens."  Sir  James 
Mansfield,  C.  J.,  in  Burdett  v.  Abbot,  4  Taunt.  401. 


INTRODUCTORY  5 

liabilities  does  not  ignore  the  fact  of  his  being  a  soldier; 
on  the  contrary,  that  fact  may  be  quite  important,  when 
considered  in  connection  with  others.  But  the  state- 
ment bears  truth  in  the  implication  that  the  soldier's 
liability  to  his  fellow-citizen  is  for  the  common  law,  and 
it  only,  to  define. 

Nor  is  it  merely  the  fellow-citizen  of  the  soldier  who 
might  have  a  complaint  against  him  cognizable  in  the 
civil  courts.  The  protection  of  the  common  law  was 
never  limited  to  questions  of  citizenship;  its  original 
test  was  merely  whether  the  plaintiff  was  within  the 
King's  peace.^  Hence  the  alien  too  may  have  his 
rights,  enforceable  in  the  common  law  courts. 

But  when  we  speak  of  the  alien's  rights  against  the 
soldier,  we  reach  the  borderline  of  the  common  law, 
because  certain  classes  of  aliens  are  excluded  from 
complaint,  in  common  law  courts,  of  harm  done  them. 
Such  is  the  case  of  the  alien  enemy  in  arms,  and  such  is 
the  case  of  the  alien  enemy  non-combatant  against 
whom  a  soldier's  tort  has  been  ratified  by  our  govern- 
ment. Here  the  common  law  stops  short  of  questions 
of  State.  Such  questions  "are  generally  political  rather 
than  legal  in  their  nature,"  belonging,  says  the  Supreme 
Court  "more  properly  to  those  who  can  declare  what  the 
law  shall  be ;  who  can  place  the  nation  in  such  a  position 
with  respect  to  foreign  powers  as  to  their  own  judgment 
shall  appear  wise ;  to  whom  are  entrusted  all  its  foreign 
relations ;  than  to  that  tribunal  whose  power  as  well  as 
duty  is  confined  to  the  application  of  the  rule  which  the 
legislature  may  prescribe  for  it."^    But  that  does  not 

^  See  Ames,  Lectures  on  Legal  History,  56. 

6  U.  S.  V.  Palmer,  3  Wheat.  610.  Thus  the  public  acts  of  foreign  govern- 
ments, in  matters  of  international  relations,  are  proven  by  the  records  of  our 


6  THE  ARMY  AND  THE  LAW 

mean  that  civil  courts  are  excluded  from  all  questions 
which  savor  of  the  international.  As  has  been  well  said : 
"The  rules  of  international  law  have  not  infrequently 
become  the  subject  of  inquiry  by  courts  in  order  to 
determine  the  rights  of  litigants,  in  which  case,  of 
course,  the  rules  of  international  law  are  ascertained 
and  applied  by  the  courts  in  the  same  way  as  rules  of 
private  law,  and  international  law  thus  has  to  that 
extent  a  complete  and  formal  sanction.  Our  own  Federal 
courts,  for  example,  have  been  called  upon  at  various 
times  to  interpret  treaties,  to  determine  in  a  given  case 
whether  a  state  of  war  existed,  whether  a  blockade  ex- 
isted, what  was  lawful  prize  and  contraband,  the  rights 
of  neutrals  and  belligerents,  and  many  other  questions 
of  purely  international  law."^  From  this  we  can 
gather  that  the  boundaries  of  the  common  law  courts 
are  not  a  matter  of  angles  and  squares;  yet  the  courts 
must  respect  these  boundaries,  and  they  are  important 
factors  in  any  consideration  of  the  army's  place  in  our  law. 
Such  then  is  our  task,  to  define  the  army's  relation 
to  the  common  law.  The  naval  establishment  occupies 
a  position  equal  to  that  of  the  army  as  a  part  of  our 
national  defense,  and  many  of  the  principles  hereinafter 
discussed  apply  to  it  as  well — in  fact  all  the  fundamental 
principles  do — but  clarity  of  presentation  will  be  best 
preserved,  it  is  believed,  by  confining  this  discussion  to 
the  army. 

State  Department  rather  than  by  independent  judicial  inquiry.  Taylor  v. 
Barclay,  2  Sim.  213;  Underhill  v.  Hernandez,  168  U.  S.  250;  Mighell  v. 
Sultan  of  Johore  (1894)  i  Q.  B.  149. 

'  Stone,  Law  and  its  Administration,  84-85. 


II 

THE  CONSTITUTION  OF  THE  ARMY 

Prior  to  the  outbreak  of  the  present  war,  we  had  two 
organizations,  one  being  the  United  States  Army,  com- 
monly called  the  regular  army,  and  the  other  the  State 
Militia  or  National  Guard.  The  President  is  always 
the  commander-in-chief  of  the  army,  and  he  is  also 
the  supreme  head  of  the  national  guard  "when  called 
into  the  actual  service  of  the  United  States."*  In  mat- 
ters of  command  he  acts  through  the  War  Department, 
at  whose  head  is  a  cabinet  officer,  the  Secretary  of  War. 
Beneath  him  come  successive  ranks  of  command  ex- 
tending from  the  Chief  of  Staff  down  through  the  vari- 
ous grades  of  commissioned  officers.  Between  the  com- 
missioned officers  and  the  private  soldier  are  met,  in 
order  of  authority,  the  two  classes  of  non-commissioned 
officers,  sergeants  and  corporals.  This  body,  thus 
directed  by  the  Executive  through  the  Secretary  of  War, 
constitutes  the  Army  of  the  United  States. 

Congress  has  power  to  provide  for  the  creation  of  the 
army,  "but  no  appropriation  to  that  effect  shall  be  for 
more  than  two  years.  "^  The  militia  belong  to  the  sev- 
eral States,  but  the  Constitution  gives  Congress  power 
to  bring  them  into  the  army  in  time  of  war,  and  to  make 
laws  for  organizing,  arming  and  disciplining  them  when 
occupying  such  a  status.^    According  to  our  national 

*  Constitution,  Art.  II,  Sect.  2. 
2  Constitution,  Art.  I,  Sect.  8. 
«  Constitution,  Art.  I,  Sect.  8. 


8  THE  ARMY  AND  THE  LAW 

scheme,  "power  to  declare  war  is  confided  to  Congress. 
The  executive  power,  and  the  command  of  the  military 
and  naval  forces,  is  vested  in  the  President."^ 

In  time  of  peace  the  national  government  has  at  its 
service  only  the  national  forces  as  distinct  from  State 
militia,  which  may  be  merged  into  the  national  forces 
only  in  time  of  war.  Within  its  restricted  orb  of  action 
each  State  uses  its  militia  for  the  same  purposes  of  self 
protection  as  the  national  government  uses  the  army, 
and  the  common  law's  views  with  regard  to  such  a  State 
force  coincide  with  its  views  with  regard  to  the  national 
army.  It  is  not  necessary,  therefore,  for  us  to  concern 
ourselves  with  the  functions  of  the  State  militia  when 
existing,  as  a  separate  body,  in  time  of  peace;  and  in 
time  of  war,  as  we  have  seen,  the  militia  is  at  the  dispo- 
sition of  Congress. 

Our  constitutional  theories  prohibit  the  use  of  the 
national  army  for  any  purpose  not  distinctly  Federal. 
It,  of  course,  may  be  used  in  time  of  war;  and  it  may  be 
used  in  any  case  where  the  maintenance  of  the  Federal 
Government's  power  is  in  question,  or  where  some  duty 
is  charged  upon  the  Federal  Government  for  the  dis- 
charge of  which  the  use  of  the  army  is  necessary.  Na- 
tional legislation  on  this  subject  all  bears  to  that  end.^ 
In  general  outline,  the  use  of  the  army,  in  connection 
with  the  functions  of  the  national  government,  is  gov- 
erned by  substantially  the  same  considerations  as  con- 
trol the  use  of  the  British  army  in  similar  connections. 
There  is,  however,  with  us  one  restriction  which  must 
be  noted,  that  the  army  shall  not  be  used  "as  a  posse 

*  Hamilton  v.  Dillon,  21  Wall.  73. 

6  See  enumeration  in  Davis,  Mil.  Law,  3d  ed.,  p.  34,  et  seq. 


THE  CONSTITUTION  OF  THE  ARMY  9 

comitatus  or  otherwise,"  for  the  purpose  of  executing  the 
laws,  except  in  such  cases  and  under  such  circumstances 
as  its  employment  may  be  expressly  authorized  by 
the  Constitution  or  by  act  of  Congress.^  These  re- 
strictions, however,  in  view  of  legislation  on  the  subject 
come  down  to  about  this,  that  a  United  States  marshal 
cannot  call  out  any  portion  of  the  army  for  the  mere 
purpose  of  executing  a  writ  in  a  criminal  or  civil  pro- 
ceeding, in  the  same  manner  as  he  may  by  common  law 
call  out  the  body  of  the  citizenry  in  his  district.^ 

Let  us  now  turn  to  the  personnel  of  the  army.  First, 
there  are  the  commissioned  officers,  ranging  in  rank 
from  the  second  lieutenant  up  through  the  various  ranks 
of  general.  A  commission  is  not  a  contract  of  any  sort; 
but  removal  is  regulated  by  the  Articles  of  War  and 
regulations  hereinafter  discussed,  which  provide  for 
such  a  thing  only  in  case  of  conviction  of  a  military 
offense  by  a  court  martial  or  on  the  advice  of  a  special 
board.  An  officer  in  the  new  national  army  created  by 
the  Selective  Service  Act  of  May  18,  1917,^  however, 
has  not  even  that  vested  right,  for  Section  9  of  that 
statute  allows  his  removal  by  the  President,  in  the 
latter' s  discretion.  Then  come  the  non-commissioned 
officers,  appointed  from  among  the  ranks  of  the  private 
soldiers.  So  the  manner  and  form  of  one's  joining  the 
ranks  as  an  enlisted  man  will  be  our  next  inquiry. 

Prior  to  our  entry  into  the  present  war,  an  essential 
quality  of  both  the  regular  army  and  the  national  guard 
was  that  no  man  need  elect  to  serve  in  either  except  by 

«  Act  June  12,  1878,  Sect.  15,  20  Stat.  152. 

7  See  on  this  whole  subject  Davis,  op.  cit.  c.  XVIII. 

8  40  Stat.  76. 


lo  THE  ARMY  AND  THE  LAW 

his  own  choice.  To  leave  out  of  the  question  the  na- 
tional guard,  this  made  our  regular  army  a  "standing 
army"  of  the  kind  with  which  English  history  has  made 
us  so  familiar  since  the  days  of  the  Stuarts.  In  its  sup- 
port, outside  of  the  reserve  corps  created  by  recent  legis- 
lation, there  stood  nothing  but  the  State  militia.  This 
system,  whose  utter  inadequacy  has  been  faithfully 
shown  by  competent  critics  on  both  sides  of  the  At- 
lantic,^ has  been  a  characteristic  of  Anglo-Saxon  insti- 
tutions for  three  centuries.  In  England,  at  least  prior 
to  the  Territorial  and  Reserve  Forces  Act  of  1907,  there 
were  the  regular  army  and  the  militia,  and  the  statute 
just  mentioned  did  not  repeal  the  various  militia  acts 
which  go  back  to  the  time  of  Charles  11.^^  "Historically," 
says  a  standard  writer,  "the  militia  is  an  older  institu- 
tion than  the  permanent  army,  and  the  existence  of  a 
standing  army  is  historically,  and  according  to  constitu- 
tional theories,  an  anomaly.  Hence  the  standing  army 
has  often  been  treated  by  writers  of  authority  as  a  sort 
of  exceptional  or  subordinate  topic,  a  kind  of  excres- 
cence, so  to  speak,  on  the  national  and  constitutional 
force  known  as  the  militia.  As  a  matter  of  fact,  of 
course,  the  standing  army  is  now  the  real  national  force, 
and  the  territorial  force  is  a  body  of  secondary  im- 
portance." ^^ 

The.  same  thing  happened  with  us.  Taking  over  the 
English  fear  of  the  standing  army,  our  Constitution 
adopted  the  English  conception  of  the  annual  mutiny 
act,  of  which  more  will  be  said  hereafter,  by  providing 

»  See  Upton's  "Military  Policy  of  the  United  States." 
"  Dicey,  Law  of  the  Constitution,  8th  ed.  291. 
^  Dicey,  Law  of  the  Constitution,  8th  ed.  292. 


THE  CONSTITUTION  OF  THE  ARMY  ii 

that  no  appropriation  for  the  support  of  the  army  shall 
be  for  a  longer  period  than  two  years.  At  the  same 
time  we  are  told  that  "a  well-regulated  militia  is  essen- 
tial for  the  security  of  a  free  people."  General  Upton, 
in  his  "Military  Policy  of  the  United  States,"  has  shown 
that,  whatever  may  be  the  value  of  militia  as  against 
an  overweening  sovereign,  its  essential  worth  as  security 
for  a  free  people  against  a  foreign  invader  is  a  very 
doubtful  quality,  because,  to  speak  only  of  our  war  of 
1 8 12,  a  small  force  of  regulars  defeated  a  much  larger 
force  of  militia  at  Bladensburg,  took  Washington  and 
burned  the  Capitol.  It  is  also  noteworthy  that  two 
satires  on  militia  training,  so  alike  as  to  have  raised  the 
charge  of  plagiarism,  are  to  be  found  in  Longstreet's 
"Georgia  Scenes,"  published  long  before  our  Civil  War, 
and  Thomas  Hardy's  "Trumpet  Major,"  published  in 
our  own  time. 

Over  against  this  theory  of  a  small  standing  army 
and  the  militia,  stands  the  idea  of  universal  service,  an 
idea  to  the  acceptance  of  which  the  exigencies  of  the 
present  war  have  forced  both  England  and  this  coun- 
try. But  as,  at  least  with  us,  our  scheme  of  universal 
service  is  limited,  by  the  terms  of  the  Selective  Service 
Act  of  May  i8,  191 7,  to  the  period  of  the  war,  it  might 
not  be  out  of  place  to  point  out  certain  historical  con- 
siderations. These  are  so  obvious,  and  concerning  them 
so  much  has  been  said,  that  the  only  claim  for  their 
presentation  is  the  fact  that  the  end  of  a  great  war 
always  brings  problems,  and  that  among  the  greatest 
of  these  will  be  the  question  whether  w^e  shall  return  to 
the  complex  army-militia  system  of  olden  time. 


12  THE  ARMY  AND  THE  LAW 

We  hear  much  of  universal  service  as  a  German  idea. 
May  we  point  to  the  fact  that,  as  a  practical  matter,  It 
originated  (as  opposed  to  the  Idea  of  standing  armies), 
with  the  French  Republic  at  Its  birth?  On  February 
21,  1793,  France,  having  relied  during  the  previous  year 
on  volunteers,  now  England  and  Holland  joining  the 
ranks  of  her  enemies,  enacted,  through  the  decree  of  the 
National  Convention  as  follows: 

"Tous  les  citoyens  frangals,  depuls  T^ge  de  18  ans 
jusqu'a  40  ans  accomplis,  non  marles  ou  veufs  sans 
enfants  sont  en  etat  de  requisition  permanente  jusqu'a 
r^poque  du  complement  du  recrutement  effective  des 
300,000  hommes  de  nouvelle  levee,  decretee  ci-apres."  ^^ 

Thus  originated,  in  the  words  of  one  of  France's 
soldierly  enemies,  "the  conscription,  that  mighty  staff 
on  which  France  leaned  v/hen  all  Europe  attempted  to 
push  her  down — the  conscription,  without  which  she 
could  never  have  sustained  the  dreadful  war  of  an- 
tagonist principles  entailed  upon  her  by  the  revolution 
— that  energetic  law  which  he  (Napoleon)  did  not 
establish,  but  which  he  freed  from  abuse  and  rendered 
great,  rational  and  endurable,  by  causing  it  to  strike 
equally  on  all  classes:  the  conscription  made  the  sol- 
diers the  real  representatives  of  the  people."  ^^  It  is  a 
commonplace  how  Prussia,  In  the  bitter  years  that 
followed  Jena,  elaborated  the  proposition  of  universal 
service,  and  how  France,  in  the  epoch  that  lay  between 
Waterloo  and  Sedan,  departed  more  and  more  from  its 
rigid  enforcement ;  but  the  basic  idea  of  the  enrolment  of 
a  nation's  manhood  In  her  defense  Is  essentialy  French. 

^2  Caron,  La  Defense  Nationale,  8. 

13  Napier,  Peninsular  War,  Bk.  22,  c.  4. 


THE  CONSTITUTION  OF  THE  ARMY  13 

Prior  to  this  titanic  stroke  of  the  beleaguered  French 
Republic,  the  idea  of  a  standing  army  had  been  very 
fashionable  on  the  continent  of  Europe,  attaining,  in- 
deed, its  full  flower  about  the  middle  of  the  eighteenth 
century.  The  philosophical  tendency  at  that  time  was 
to  regard  war  as  an  affair  of  kings,  not  of  the  people,  and 
the  idea  thus  germinated  was  shared  by  minds  the  most 
diverse.  Thus  both  Rousseau  and  his  Dutch  contem- 
porary, Vattel,  advanced  the  suggestion  that  war  is 
merely  a  relation  of  State  to  State,  in  which  the  indi- 
vidual citizens  have  no  interest,  except  as  they  may  be 
hired  soldiers.  ^^  To  the  same  view  came  finally  Fred- 
erick the  Great,  despite  the  fact  that  a  crude  theory  of 
universal  service,  in  the  shape  of  allotted  districts  for 
recruiting  purposes,  had  existed  in  Prussia  even  in  his 
father's  time.  "The  old  King  saw  with  satisfaction," 
says  the  admiring  Treitschke,  "how  his  unfortunate  land 
was  being  strengthened  agriculturally,  and  now  defined 
the  ideal  of  the  army  with  the  astounding  words.  The 
peaceful  citizen  shall  not  even  notice  when  the  nation  is 
at  war'.  So  one  of  the  pillars  which  upheld  the  edifice  of 
State — universal  service — began  slowly  to  totter."  ^^  A 
little  earlier  in  the  century  an  incident  of  the  kind 
Frederick  fondly  prefigured  had  actually  occurred.  A 
peaceful  citizen  of  England,  the  Rev.  Lawrence  Sterne, 
tells  us  how  he  got  as  far  on  his  "Sentimental  Journey" 
as  Paris,  in  sheer  forget  fulness  that  his  nation  was  then 
at  war  with  France.  And,  finally,  if  we  want  the  very 
pitch  and  climax  of  this  idea — the  peaceful  citizen  going 
about  his  business  in  comfortable  calm,  while  his  coun- 

^*  See  passages  quoted  in  Bordwell,  Law  of  War,  47. 

16  Treitschke,  Life  of  Frederick  the  Great,  Putnam  ed.,  183-184. 


14  THE  ARMY  AND  THE  LAW 

try's  sovereign  and  standing  army  hold  off  the  foe — let 
us  read  what  Paley,  whose  part  in  contemporary 
EngHsh  and  American  thought  has  been  recognized  by 
many  writers  of  much  diversity  of  opinion  has  to 
say  on  the  subject.  His  Moral  Philosophy  contains  a 
chapter  i®  treating  "Of  War  and  of  Military  Establish- 
ments." After  pointing  out  that  it  is  not  unlawful  for  a 
Christian  to  bear  arms,  and  that  a  nation  should  go  to 
war  if  just  cause  compels  it  (with  which  we  all  agree), 
he  proceeds  to  discuss  the  system  of  a  standing  army. 
Showing  first  the  inefficacy  of  militia  as  against  a  stan- 
ding army,  with  which  we  must  agree  if  we  read  General 
Upton's  book,  he  concludes  that  the  standing  army  is 
the  only  thing  to  have.  That,  in  the  face  of  the  exam- 
ples afforded,  first  by  the  campaigns  of  revolutionary 
and  Napoleonic  France,  and  later  of  Prussia  in  1866 
and  1870,  is  a  non  sequitur,  because  most  assuredly,  as 
against  a  nation  with  a  system  of  universal  service,  a 
small  standing  army,  however  excellent,  cannot  prevail. 
But  this  conclusion  of  Dr.  Paley's  is  not  as  interesting 
as  his  additional  reflections  on  the  subject.  In  them  lies 
imbedded  an  historical  fact  of  great  value,  namely,  that 
at  one  time,  and  not  so  very  far  back  in  our  common 
history,  the  idea  of  universal  service  was  accepted ;  the 
only  difference  being  that  this  idea  was  then  applied  to 
the  militia.  From  the  terms  of  the  English  statute  regu- 
lating the  militia,  enacted  in  1663  ^^  Professor  Dicey 
draws  the  conclusion  that  "in  the  Seventeenth  Century 
Parliament  apparently  meant  to  rely,  for  the  defense  of 
England,  upon  this  national  army  raised  from  the  coun- 

16  Bk.  6,  c.  12. 
"  14  Car.  II,  c.  3. 


THE  CONSTITUTION  OF  THE  ARMY  15 

ties  and  placed  under  the  guidance  of  country  gentle- 
men." ^^  It  was  the  standing  army,  composed  partly  of 
foreign  mercenaries,  and  devoted  to  the  service  of  the 
King,  of  which  Parliament  was  jealous,  not  the  national 
army  proposed  by  the  Act  of  1663.^^  The  standing 
army,  in  short,  was  part  of  that  royal  appanage  of  which 
Parliament  was  distrustful.  Therefore,  after  the  revo- 
lution of  1688,  Parliament  adopted  the  expedient  of  an 
annual  Mutiny  Act,  which  made  offenses  against  disci- 
pline in  the  regular  army  punishable  by  court  martial, 
only  for  the  period  of  one  year;  thus  making  it  neces- 
sary for  Parliament  annually  to  provide  for  the  continu- 
ance of  a  regular  army.  But  an  astonishing  change 
came  with  the  successful  operations  of  the  new  army, 
in  the  campaigns  of  Marlborough;  a  change  which 
Addison  reflects  in  the  165th  essay  of  the  Spectator. 
The  standing  army  then  became  popular  with  the  mid- 
dle and  upper  classes,  and  those  who  expressed  their 
philosophy  of  life,  among  whom  was  Dr.  Paley.  So,  to 
return  to  Dr.  Paley's  observations  of  war  and  the  mili- 
tary establishment,  we  find  him  saying  this: 

Moreover,  as  such  a  militia  must  be  supplied  by  rotation, 
allotment,  or  some  mode  of  succession  whereby  they  who 
have  served  a  certain  time  are  replaced  by  fresh  draughts 
from  the  country,  a  much  greater  number  will  be  instructed 
in  the  use  of  arms,  and  will  have  been  occasionally  embodied 

18  Dicey,  op.  cit.  293  n. 

19  See  Federalist,  pts.  24-26.  Thus  during  the  Protectorate  the  case  of 
Paradine  v.  Jane,  Aleyn  26,  the  pioneer  case  on  the  operation  of  war  as 
vis  major  in  excusing  non-performance  of  contract,  was  decided.  The  de- 
fendant, the  owner  of  lands  over  which  Prince  Rupert's  army  had  passed, 
described  in  his  plea  the  Prince  as  "a  certain  German  Prince,  by  name  Prince 
Rupert,  an  alien  born,  enemy  to  the  King  and  his  Kingdom,  who  did  invade 
this  realm  with  a  hostile  body  of  men." 


I6  THE  ARMY  AND  THE  LAW 

together,  than  are  actually  employed,  or  than  are  supposed 
to  be  wanted,  at  the  same  time.  Now,  what  effects  upon  the 
civil  condition  of  the  country  may  be  looked  for  from  this 
general  diffusion  of  the  military  character,  becomes  an  in- 
quiry of  great  importance  and  delicacy.  To  me  it  appears 
doubtful  whether  any  government  can  be  long  secure,  where 
the  people  are  accustomed  to  the  use  of  arms  and  accus- 
tomed to  resort  to  them.  .  .  To  which  we  may  subjoin 
that  in  governments  like  ours,  if  the  direction  and  officering 
of  the  army  were  placed  in  the  hands  of  the  democratic  part 
of  the  constitution,  this  power,  added  to  what  they  already 
possess,  would  so  over-balance  all  that  would  be  left  of  regal 
prerogative  that  little  would  remain  of  monarchy  in  the  con- 
stitution, but  the  name  and  expense,  nor  would  these  prob- 
ably remain  long.^o 

Now,  there  is  a  complete  Tory  argument  against  uni- 
versal service,  so  complete  as  to  leave  no  doubt  in  the 
mind  of  any  democrat  of  the  wisdom  of  a  system  of  uni- 
versal service;  for,  so  far  from  its  being  incompatible 
with  a  democratic  state,  Dr.  Paley,  the  spokesman  of 
the  eighteenth  century  High  Tories,  shows  that  it  is  an 
abhorrent  thing,  and  wholly  incompatible  with  the 
system  of  government  of  which  George  III  was  a  shining 
exemplar.  The  fathers  of  our  Constitution  grasped  a 
part  of  that  idea,  when  they  put  the  provisions  of  the 
Mutiny  Act  into  our  Constitution,  but,  like  our  English 
ancestors  of  the  Whig  school,  they  never  thought  of 
wiping  out  the  dual  system  of  standing  army  plus 
militia,  and  establishing  in  its  place  a  single  national 
army  based  on  universal  service,  in  which  only  the  corps 
of  officers  should  have  permanency.    The  democratic 

20  Paley,  Moral  Philosophy,  Bk.  6,  c.  12.  To  somewhat  the  same  effect 
writes  another  eighteenth  century  philosopher,  but  of  a  far  more  liberal 
complexion,  Adam  Smith,  Wealth  of  Nations,  Bk.  6,  c.  i. 


THE  CONSTITUTION  OF  THE  ARMY  17 

statesmen  of  modern  English  times  have  followed  the 
same  line,  keeping  the  dual  system  of  a  small  standing 
army  with  a  nebulous  militia.  Both  nations,  therefore, 
long  ignored  the  fact  that  the  idea  of  universal  service 
had  germinated  in  England,  and  burgeoned  in  France, 
as  already  shown.  Perhaps  at  the  conclusion  of  this 
war  there  will  still  be  found  people  in  English-speaking 
countries  who  will  maintain  that  the  idea  of  universal 
service  belongs  wholly  to  Prussia,  blinding  their  eyes  to 
the  fact  that  its  genesis  comes  from  far  more  liberal 
sources. 

But  whatever  decision  may  be  reached  after  the  war 
as  to  our  military  system,  it  is  enough  for  our  present 
purposes  to  deal  with  that  which  we  have.  Our  Selec- 
tive Service  Law  of  May  18,  19 17,  retained  the  regular 
army,  authorizing  its  increase  to  287,000  men,  and  re- 
tained the  national  guard,  authorizing  its  increase  to 
625,000  men.  But  it  provides  in  order  to  (a)  fill  vacan- 
cies in  the  regular  army  and  national  guard,  and  (b) 
raise  a  new  national  army,  for  the  registration  of  "all 
male  persons  between  the  ages  of  twenty-one  and  thirty, 
both  inclusive."  Previous  legislation  of  1914-1916  had 
provided  for  drafting  the  national  guard  into  the 
federal  service,  and,  prior  to  the  passage  of  the  Act  of 
May  18,  1917,  some  had  already  been  so  drafted.  With 
the  passage  of  the  latter  Act  the  President  issued  orders 
for  drafting  the  entire  national  guard  into  the  federal 
service,  and  his  proclamation  dated  May  18,  1917,  fixed 
June  5,  191 7,  as  Registration  Day  under  the  new 
statute.2i  With  the  rest  we  are  familiar,  and  it  only  re- 
mains to  note  with  satisfaction  that  the  constitution- 
al 6  Times  Current  History,  Pt.  i,  380. 


1 8  THE  ARMY  AND  THE  LAW 

ality  of  it  all  has  been  upheld  by  the  Supreme  Court. ^^ 
So  we  are  now  at  war,  with  the  man-power  of  the  nation 
as  our  weapon,  just  as  France  in  1793  sent  forth  her 
conscripts  to  fields  whose  names  are  household  words  in 
history. 

Let  us  remember,  finally,  that  the  idea  of  conscription 
for  service  should  not  be  such  a  strange  thing  to  us  as  it 
might  be  to  the  English.  This  is  the  first  time,  since  the 
Civil  War  of  Charles  I,  that  England  has  suffered  any 
devastation  from  war.  In  the  time  of  our  Civil  War 
this  country,  in  both  sections,  knew  what  it  meant  to 
have  the  enemy  at  the  gates.  And  previously,  in  the 
war  of  1 8 12  an  armed  enemy  took  a  part  of  our  domain 
in  the  far  North,^^  resulting  in  the  British  occupation  of 
Castine,  another  force  won  on  our  soil  the  battle  of 
Bladensburg  and  captured  Washington,  and  still  an- 
other landed  in  Louisiana  and  retired  only  after  the 
battle  of  New  Orleans. 

It  is  no  wonder  that  as  far  back  as  1841  Mr.  Monroe, 
Secretary  of  War,  advocated  compulsory  service.^*  In 
our  Civil  War  both  sides  resorted  to  conscription.  The 
Confederate  Congress,  by  its  Acts  of  April  16,  1862,  and 
September  27,  1862,  authorized  the  Confederate  Presi- 
dent "to  call  out  and  to  place  in  the  military  service  of 
the  Confederate  States,  for  three  years,  unless  the  war 
shall  have  sooner  ended,  all  white  men,  who  are  resident 
in  the  Confederate  States"  between  certain  ages,  who 
were  not  legally  exempt  from  military  service.^^  The 
constitutionality  of  this  legislation  was  upheld  in  such 

22  Arver  v.  U.  S.,  245  U.  S.  366;  38  Sup.  Ct.  Rep.  159. 

23  See  U.  S.  V.  Rice,  4  Wheat.  246. 

24  See  citations  in  Jeffers  v.  Fair,  33  Ga.  347,  and  Arver  v.  U.  S.,  supra. 

25  Jeffers  v.  Fair,  supra. 


THE  CONSTITUTION  OF  THE  ARMY  19 

courts  of  the  Confederate  States  as  it  came  before,  and 
particularly  is  to  be  commended  the  decision  of  the  Su- 
preme Court  of  Georgia. 26  The  United  States  govern- 
ment was  authorized  by  Congress  to  take  men  selected 
by  a  system  of  lottery  or  draft,  for  military  purposes,  by 
the  Act  of  March  3,  1863.27  The  constitutionality  of 
this  Act  unfortunately  was  not  tested  in  the  Supreme 
Court,  but  it  is  noteworthy  that  that  court,  in  deciding 
the  constitutionality  of  the  present  Act,  places  part  of 
its  reliance  on  the  decisions  of  the  State  courts  which, 
sitting  within  the  Confederacy,  upheld  the  Conscription 
Acts  of  the  Confederate  States.^^ 

The  historical  and  constitutional  matters  which  have 
already  been  considered,  long  ago  induced  our  courts,  in 
common  with  those  of  England,  to  view  the  army  as 
having  a  distinct  status  in  the  governmental  system,  in- 
deed as  occupying  the  position  practically  of  an  estate  of 
the  realm.  The  cardinal  necessities  of  its  existence, 
command  on  the  one  side  and  obedience  on  the  other, 
can  lead  to  no  other  conclusion  on  the  part  of  a  com- 
mon law  court,  if  it  is  to  recognize  the  lawfulness  of 
having  an  army  at  all.  Matters  connected  with  the 
army  are,  therefore,  in  the  common  law  view,  essen- 
tially things  of  status  rather  than  contract.  This  is  not 
the  only  instance  of  common  law  acceptance  of  status  as 
an  actual  proposition.  Marriage,  for  example,  with  its 
accompanying  restrictions  in  points  of  evidence  and  of 
property  right,  is,  in  our  law,  wholly  a  matter  of  status. 

26  Jeffers  v.  Fair,  supra.  For  a  defense  of  the  Confederate  statute  against 
the  attacks  of  Governor  Brown  of  Georgia,  see  Davis,  Rise  and  Fall  of  the 
Confederate  Government,  Vol.  I,  Sq6. 

"  12  Stat.  731. 

28  Arver  v.  U.  S.,  245  U.  S.  366;  38  Sup.  Ct.  Rep.  159. 


20  THE  ARMY  AND  THE  LAW 

Just  so  it  Is  with  the  army,  and,  therefore,  we  find  the 
law  fully  admitting  that  entry  into  the  national  service 
effects,  for  the  soldier  or  officer  concerned,  a  "change  of 
status."  29 

The  Selective  Service  Act  of  May  i8,  1917,  can  make 
no  difference  in  this  respect,  because  no  valid  distinction 
can  be  seen  in  whether  one's  status  is  assumed  volun- 
tarily or  imposed  upon  one  by  operation  of  law.  In  the 
words  of  the  Supreme  Court,  which  has  fully  upheld  the 
statute,  compulsory  service  simply  amounts  to  "the 
exaction  by  government  from  the  citizen  of  the  per- 
formance of  his  supreme  and  noble  duty  of  contributing 
to  the  defense  of  the  rights  and  honor  of  the  nation," 
and  any  contention  that  this  imposes  involuntary  servi- 
tude is  refuted  by  its  mere  statement. ^° 

For  that  reason,  a  minor's  enlistment,  so  far  as  the 
common  law  was  concerned,  was  not  voidable,  even 
from  his  standpoint  or  that  of  his  parents,  nor  was  it 
voidable  so  far  as  the  State  was  concerned  so  long  as  the 
minor  was  capable  of  bearing  arms.^^  In  the  words  of 
Best,  J.,  the  general  policy  of  the  common  law  requires 
"that  a  minor  shall  be  at  liberty  to  contract  an  engagement 
to  serve  the  State." ^^  For  any  such  modification  of  this 
broad  view  as  may  obtain  at  present,  therefore,  we  must 
look  to  statutes,  and  ours  on  the  subject  are  very  simple. 

Prior  to  1899  our  statute  ^^  had  fixed  the  enlistment 
age  as  between  sixteen  and  thirty-five.     The  Act  of 

29  Re  Morrissey,  137  U.  S.  157;    11  Sup.  Ct.  Rep.  54. 

30  Arver  v.  U.  S.,  245  U.  S.  366,  38  Sup.  Ct.  Rep.  159. 

31  Re  Grimley,  137  U.  S.  147;  11  Sup.  Ct.  Rep.  54;  Re  Morrissey  137 
U.  S.  157;   II  Sup.  Ct.  Rep.  57;  U.  S.  Manual  for  Courts  Martial  393. 

32  Rex  V.  Rotherfield  Grays,  i  B.  &  C.  345. 

33  R.  S.,  Sect.  1 1 16. 


THE  CONSTITUTION  OF  THE  ARMY  21 

March  2,  1899  ^^  as  re-enacted  by  the  National  Defense 
Act  of  June  3,  191 6  ^^  raised  the  minimum  age  to  eigh- 
teen, and  provided  that  if  a  minor  appHcant  had  a 
parent  or  guardian  entitled  to  his  custody  and  control, 
he  should  not  be  enlisted  or  mustered  into  the  service 
without  the  written  consent  of  such  parent  or  guardian. 
Under  this  scheme  it  would  follow  that  the  enlistment 
of  a  minor  having  parent  or  guardian,  without  the 
latter's  consent,  could  be  effected  only  by  his  making  to 
the  recruiting  officer  untruthful  statements  as  to  his  age, 
or  presenting  a  false  certificate  as  to  the  consent  of  his 
parent  or  guardian.  In  any  such  case,  the  only  one 
logically  entitled  to  complain  would  be  the  parent  or 
guardian  thus  defrauded,  by  the  minor's  act,  of  his 
services.  Certainly  the  minor,  the  perpetrator  of  the 
fraud,  should  not  be  allowed  to  complain.  Such  is  the 
view  of  the  courts.  They  considered  this  statute  as  in- 
tended, not  for  the  minor's  protection,  but  rather  for  the 
benefit  of  the  parent  or  guardian.  The  enlistment,  of 
its  own  force,  made  the  minor  "not  only  de  facto,  but 
de  jure  a  soldier — amenable  to  military  discipline." ^^ 
And  then  it  must  be  remembered  that  there  is  another 
innocent  party  in  the  transaction,  the  government; 
and  the  courts  felt  that  they  could  not  allow  the 
statutory  right  of  the  parent  or  guardian  to  operate  to 
the  prejudice  of  the  government.  Hence  the  demand  of 
the  parent  or  guardian  for  the  return  of  the  minor 
should  be  promptly  made,  and  any  delay  will  be  con- 
strued as  a  consent,  operating  by  way  of  an  estoppel  on 

34  30  Stat.  978. 

35  39  Stat.  186,  Sect.  27. 
3«  Re  Morrissey  (supra). 


22  THE  ARMY  AND  THE  LAW 

the  demandant.^^  Also  it  is  just  as  clear  that  the  avoid- 
ance of  the  enlistment  must  await,  for  its  operation,  the 
consequences  of  any  military  offense  which  the  minor 
may  have  committed  with,  or  after,  his  enlistment.  All 
of  this,  when  coupled  with  the  statute  enacted  in  1892,28 
whose  provisions  now  form  part  of  the  Articles  of  War,^^ 
makes  fraudulent  enlistment  and  the  receipt  of  pay  or 
allowances  thereunder  a  military  offense.  The  result  is 
that  the  miner's  very  act  of  deception  in  enlisting,  if 
followed  by  the  receipt  of  a  dollar  of  pay,  is  an  offense 
for  which  the  government  may  exact  punishment,  prior 
to  his  being  handed  over  to  the  parent  or  guardian.^^ 
The  same  propositions  apply  to  other  matters  of  dis- 
qualification.   The  statutes ^^  reject  as  applicants  aliens, 

37  Ex  parte  Dunakin,  202  Fed.  290;  Ex  parte  Dostal,  243  Fed.  664.  "It 
is  settled  law  that  a  minor,  who  enlists  without  the  written  consent  of  a 
parent  or  guardian,  when  such  consent  is  required,  becomes  a  soldier.  His 
enlistment  is  not  void,  nor  is  it  voidable  in  any  event  by  him.  He  may  be  re- 
leased from  the  service  by  a  timely  application  of  the  parent  or  guardian 
having  a  superior  right  to  his  custody  or  control.  But  this  application  must 
be  made  with  reasonable  diligence,  after  the  parent  or  guardian  has  acquired 
knowledge  of  the  actual  enlistment,  and  before  an  offense  has  been  committed 
by  him.  After  an  offense  has  been  committed  by  the  minor  against  the 
military  law,  and  especially  after  he  has  been  placed  under  arrest  and 
charges  have  been  preferred  against  him,  it  is  too  late  for  the  parent  or 
guardian  to  oust  the  jurisdiction  of  the  military  authorities  by  an  application 
to  the  civil  courts  for  a  writ  of  habeas  corpus.  See  the  following:  Ex  parte 
Grimley,  137  U.  S.  147.  n  Sup.  Ct.  54,  34  L.  Ed.  636;  In  re  Morrissey,  137 
U.  S.  157,  II  Sup.  Ct.  57,  34  L.  Ed.  644;  Ex  parte  Hubbard  (C.  C.)  182  Fed. 
76;  Ex  parte  Dunakin  (D.  C.)  202  Fed.  290;  Dillingham  v.  Booker,  163  Fed. 
696,  90  C.  C.  A.  280,  18  L.  R.  A.  (N.  S.)  956,  16  Ann.  Gas.  127;  U.  S.  v. 
Williford  220  Fed.  291,  163  C.  C.  A.  273;  McGorray  v.  Murphy,  80  Ohio  St. 
413,  88  N.  E.  881,  17  Ann.  Gas.  444."    Ex  parte  Dostal,  supra. 

38  Act  July  27.  1892,  27  Stat.  278. 

39  Art.  54,  as  revised  by  Act  of  Aug.  29,  1916,  39  Stat.  650. 

^°  U.  S.  V.  Williford,  220  Fed.  291,  and  cases  there  cited;  Manual  of  Courts 
Martial  393-396. 

^  R.  S.,  Sect.  II 18  and  following,  now  sections  27  and  following  of 
National  Defense  Act  of  June  3,  1916,  39  Stat.  186. 


THE  CONSTITUTION  OF  THE  ARMY  23 

insane  and  intoxicated  persons,  and  deserters.  The  case 
of  one  non  compos  mentis,  such  as  an  insane  or  intoxi- 
cated person,  takes  care  of  itself,  because  his  mind  did 
not  accompany  his  act  and  he  did  not  make  a  change  of 
status.  But  if  the  government  should  be  satisfied  to 
keep  in  its  service  an  alien  or  deserter,  again  the  common 
law  idea  of  status  prevails  over  the  statutory  definition, 
and  the  soldier  cannot  escape  by  showing  that  his  en- 
listment should  not  have  been  accepted.^^ 

^2  Ex  parte  Dostal,  supra,  and  cases  there  cited.  The  whole  proposition  is 
stated  in  the  following  language  of  Brewer,  J.,  In  re  Grimley,  supra :  "Grimlcy 
has  made  an  untrue  statement  in  regard  to  his  qualifications.  The  Govern- 
ment makes  no  objection  because  of  the  untruth.  The  qualification  is  one 
for  the  benefit  of  the  Government,  one  of  the  contracting  parties.  Who  can 
take  advantage  of  Grimley 's  lack  of  qualification?  Obviously  only  the  party 
for  whose  benefit  it  was  inserted.  Such  is  the  ordinary  law  of  contracts. 
Suppose  A,  an  individual,  were  to  offer  to  enter  into  contract  with  persons  of 
Anglo-Saxon  descent,  and  B,  representing  that  he  is  of  such  descent,  accepts 
the  offer  and  enters  into  contract;  can  he,  thereafter,  A  making  no  objec- 
tion, repudiate  the  contract  on  the  ground  that  he  is  not  of  Anglo-Saxon 
descent?  A  has  prescribed  the  terms.  He  contracts  with  B  upon  the 
strength  of  his  representations  that  he  comes  within  those  terms.  Can  B 
thereafter  plead  his  disability  in  avoidance  of  the  contract?  On  the  other 
hand,  suppose  for  any  reason  it  could  be  contended  that  the  proviso  as  to 
age  was  for  the  benefit  of  the  party  enlisting,  is  Grimley  in  any  better  posi- 
tion? The  matter  of  age  is  merely  incidental,  and  not  of  the  substance  of 
the  contract;  and  can  a  party  by  false  representations  as  to  such  incidental 
matter  obtain  a  contract,  and  thereafter  disown  and  repudiate  its  obligations 
on  the  simple  ground  that  the  fact  in  reference  to  this  incidental  matter  was 
contrary  to  his  representations?  .  .  He  cannot,  of  his  own  volition,  throw 
off  the  garments  he  has  once  put  on,  nor  can  he,  the  State  not  objecting,  re- 
nounce his  relations  and  destroy  his  status  on  the  plea  that,  if  he  had  dis- 
closed truthfully  the  facts,  the  other  party,  the  State,  would  not  have  entered 
into  the  new  relations  with  him,  or  permitted  him  to  change  his  status. 
.  .  .  A  naturalized  citizen  would  not  be  permitted,  as  a  defense  to  a 
charge  of  treason,  to  say  that  he  had  acquired  his  citizenship  through  per- 
jury, that  he  had  not  been  a  resident  of  the  United  States  for  five  years,  or 
within  the  State  or  Territory  where  he  was  naturalized  one  year,  or  that  he 
was  not  a  man  of  good  moral  character,  or  that  he  was  not  attached  to  the 
Constitution.  No  more  can  an  enlisted  soldier  avoid  a  charge  of  desertion, 
and  escape  the  consequences  of  such  act,  by  proof  that  he  was  over  age  at  the 
time  of  enlistment,  or  that  he  was  not  able  bodied,  or  that  he  had  been 


24  THE  ARMY  AND  THE  LAW 

So  stood  the  law  prior  to  our  entry  into  the  War. 
Some  important  differences  have  been  made  by  the 
Selective  Service  Law  of  May  i8,  191 7 

First  of  all,  this  statute  finds,  with  its  enactment,  the 
two  volunteer  organizations,  the  Regular  Army  and  the 
National  Guard.  The  former  it  continues ;  the  latter  it 
authorizes  the  President  to  draft  into  the  service  of  the 
national  government.  This,  as  to  the  members  of  the 
National  Guard,  effects  a  change  of  status.  The  Presi- 
dent's proclamation  makes  each  such  man  a  member  of 
the  national  military  forces  from  the  time  the  call  is 
issued,  so  that  a  refusal  to  obey  it  is  a  military  offense 
against  the  national  authority,  and  punishable  as  such. 
It  is  true  that,  when  a  similar  draft  was  made  in  1812, 
the  Supreme  Court  at  first  considered  that  the  Act  of 
Congress  made  the  officers  and  members  of  the  militia 
a  part  of  the  national  forces  only  from  the  time  of  their 
arrival  at  the  appointed  place  of  mobilization,  whereas 

convicted  of  a  felony,  or  that  before  his  enlistment  he  had  been  a  deserter 
from  the  military  service  of  the  United  States.  These  are  matters  which  do 
not  inhere  in  the  substance  of  the  contract,  do  not  prevent  a  change  of  status, 
do  not  render  the  new  relations  assumed  absolutely  void."  {In  re  Grimley, 
supra) .  So  far  as  questions  of  allegiance  may  go,  an  alien  enlisted  man  need 
find  no  difficulty:  "This  section  provides  that  no  person  who  is  not  a  citizen 
of  the  United  States,  or  who  has  not  made  a  legal  declaration  of  his  intention 
to  become  a  citizen,  shall  in  time  of  peace  be  enlisted  for  the  first  enlistment 
of  the  army.  It  will  be  noted  that  this  limitation  applies  only  in  times  of 
peace;  if  the  United  States  is  at  war,  the  limitation  does  not  apply."  Ex 
parte  Dostal,  243  Fed.  664,  673. 

".  .  .  for  though,  by  such  a  stipulation,  he  may  by  possibility  involve 
himself  in  difficulties  in  regard  to  his  allegiance  to  his  native  sovereign,  that 
is  a  matter  for  his  own  consideration,  and  cannot  affect  the  validity  of  his 
new  obligation.  If  any  authority  were  necessary  for  so  self-evident  a  propo- 
sition, it  would  be  found,  not  only  in  the  practice  of  employing  foreign  mer- 
cenaries, which  has  prevailed  amongst  civilized  nations  in  all  ages,  but  in  the 
doctrine  as  laid  down  by  the  most  approved  writers,  Vattel,  b.  i,  c.  19,  Sect. 
213;  I  Bl.  Com.  370."  U.  S.  V.  Cottingham,  i  Rob.  Va.  615,  quoted  in  Ex 
parte  Dostal,  supra. 


THE  CONSTITUTION  OF  THE  ARMY  25 

Story,  J.,  thought  that  the  status  was  imposed  from  the 
date  when  the  soldier  received  notice  of  the  call.  But  in 
the  end  this  made  no  difference,  because  all  the  Judges 
agreed  that  it  was  competent  to  make  the  date  of  the 
call  the  time  when  the  officers  and  members  of  the 
militia  became  subject  to  the  military  control  of  the 
Government.^^  If  any  subtle  shade  of  distinction  in 
this  respect  had  remained,  it  was  obliterated  in  the 
later  decision  of  Martin  v.  Mott.'*^  There  a  general 
court  martial  ^^  imposed  a  fine  on  the  plaintiff  because 
he,  being  a  member  of  the  New  York  national  guard, 
neglected  to  obey  the  call.  The  defendant,  a  United 
States  marshal,  levied  on  the  plaintiff's  goods  to  satisfy 
the  fine,  whereupon  the  plaintiff  brought  replevin 
against  the  marshal.  The  New  York  Court  of  Errors 
decided  for  the  plaintiff,"^^  but  the  Supreme  Court,  on 
writ  of  error,  reversed  the  decision.  The  draft  had  been 
imposed  under  the  Act  of  Congress  of  February  2d>, 
I795»  c.  loi,  which  authorized  the  President  to  draft  the 
militia  whenever  a  national  exigency  required  it.  The 
result  of  the  Supreme  Court's  decision  was  to  remove 
any  thought  that  the  jurisdiction  attached  only  after 
the  militiaman  had  reported  for  duty  at  the  place  of 
assembly.  In  the  Civil  War,  indeed.  Congress,  to 
remove  any  doubt  on  the  subject,  provided,  by  its  Act^^ 
drafting  the  militia  into  the  national  forces,  that  anyone 
failing  to  report  should  be  deemed  a  deserter,  subject  to 
trial  by  court  martial  of  the  national  army.    A  recusant 

*^  Houston  V.  Moore,  5  Wheat,  i. 

"  12  Wheat.  19. 

*5  Sitting  under  the  Act  of  February  28,  1795,  c.  loi. 

*^  Mills  V.  Martin,  19  Johns.  7. 

47  July  17,  1862,  12  Stat.  6gi. 


26  THE  ARMY  AND  THE  LAW 

of  this  class  was  held  to  be  a  drafted  soldier  from  the 
date  of  the  draft  order,  and  hence  his  failure  to  report 
made  his  offense  desertion  from  the  national  army.^* 
The  same  result  has  been  reached  under  the  present 
law.^^ 

«  In  re  McCall,  Fed.  Cas.  8669. 
<•  Ex  parte  Dostal,  supra. 


Ill 

MILITARY  LAW  AND  MILITARY  COURTS 

Just  as  today  the  lawyer  interested  in  any  branch  of 
practice  finds  part  of  his  law  in  the  shape  of  code  and 
part  still  in  the  flux  of  case  law,  so  military  law — using 
that  term  in  its  broadest  sense — presents  itself  today 
partly  by  way  of  code  and  partly  by  way  of  tradition 
and  precedent.  The  codified  part  in  turn  divides  itself 
into  those  portions  which,  though  codified,  have  not 
passed  into  the  shape  of  statutes,  and  those  parts  which 
have,  by  statutory  enactment,  become  written  law  of 
the  land. 

With  us  the  statutory  portion  is  expressed  in  our 
Articles  of  War.  The  Constitution  ^  allows  Congress  to 
"make  rules  for  the  government  and  regulation  of  the 
land  and  naval  forces."  The  Articles  of  War  governing 
our  army  were  first  prepared  at  the  outbreak  of  our 
Revolutionary  War,^  attained  statutory  recognition 
after  the  adoption  of  the  Constitution,^  and  received  a 
legislative  overhauling  in  1806.  The  Act  of  April  10, 
1806,^  constituted,  with  amendments  made  from  time 
to  time,  a  complete  statutory  code  of  laws  governing  the 
relations  of  officers  and  men,  and  their  conduct  as 
affecting  the  good  of  the  service,  until  191 6,  when  the 

1  Art.  I,  Sect.  8,  14. 

2  Davis,  Mil.  Law,  3d  ed.,  342. 

8  Act  September  29,  1789,  i  Stat.  95. 

*  2  Stat.  359;  Comp.  Stat.  1913,  Sects.  2305-2448. 


28  THE  ARMY  AND  THE  LAW 

Act  of  August  29th  of  that  year^  recodified  the  original 
articles,  together  with  intervening  amendments,  in  the 
present  Military  Code. 

This  Code  applies  only  to  those  who  can  be  considered 
part  of  the  army's  personnel,  including  army  field  clerks 
and  field  clerks  of  the  Quartermaster's  Corps,  so  far  as 
the  army  at  home  and  in  time  of  peace  is  concerned. 
When  the  Army  is  abroad,  without  the  territorial  juris- 
diction of  the  United  States,  the  Articles  apply  as  well 
to  all  camp  retainers  and  persons  serving  with  the 
army,  and  also  persons  accompanying  it — this  last 
class,  obviously  intended  to  cover  war  correspondents, 
being  added  in  191 6;  and  in  time  of  war  all  such 
persons  are  subject  to  the  Articles,  whether  the  army 
is  within  or  without  the  country.^ 

Historically  these  statutes  find  their  source  in  the 
corresponding  British  Articles  ^  and  the  latter  go  back 
in  turn  to  the  Revolution  of  1688.  The  English  Mutiny 
Act,  which  was  mentioned  in  the  last  chapter,  is  a 
commonplace  of  constitutional  history.  The  device 
of  an  annual  Mutiny  Act,  adopted  in  the  time  of 
Williarn  III  ^  as  a  result  of  the  Revolution  of  1688,  had 
for  its  object  to  deprive  the  Crown  of  an  army  for  more 
than  a  year  at  a  time.  To  accomplish  this  the  Act, 
annually  passed,  provides  two  things:  first,  an  appro- 
priation, for  the  army's  support,  for  only  one  year,  and 
second,  authority  to  define  offenses  against  discipline 

6  39  Stat.  650. 

8  In  time  of  war,  "accompanying"  is  given  a  very  broad  meaning,  covering 
all  cases  of  one  being  present  with  the  commander's  permission.  See  Ex  parte 
Gerlach,  247  Fed.  616. 

'  Davis,  Mil.  Law,  3d  ed.  342. 

«  The  first  Act  was  enacted  April  3,  1689,  i  W.  &  M.,  c.  5. 


MILITARY  LAW  AND  MILITARY  COURTS  29 

and  punish  them  through  courts  martial,  also  for  only 
one  year.  Thus,  at  the  end  of  each  year,  not  merely  will 
the  army  be  without  pay  unless  the  Act  be  renewed, 
but  it  will  also  be  without  any  lawful  rules  of  discipline, 
much  less  the  means  of  enforcing  breaches  of  discipline. 
"If  this  Act  were  not  in  force  a  soldier  would  not  be 
bound  by  military  law.  Desertion  would  be  at  most 
only  a  breach  of  contract,  and  striking  an  officer  would 
be  no  more  than  an  assault."^ 

This  statute,  however,  did  not  contain  in  itself  a  com- 
plete code  of  regulations.  While  it  made  mutiny  and 
desertion  punishable  by  court  martial,  it  left  all  other 
matters  affecting  discipline  to  be  regulated  by  the  royal 
prerogative,  and,  therefore,  indeed,  sanctioned  such 
regulations  as  had  previously  existed  for  the  government 
of  the  British  forces.  We  thus  are  led  back  historically 
to  the  Articles  of  War  which  had  been  issued  two  years 
previously,  and  whose  origin  in  turn  may  be  found  in 
various  regulations  drawn  up  for  the  conduct  and  disci- 
pline of  the  army,  notably  in  which  may  be  placed  the 
Prince  Rupert  Articles  of  1672.1°  These  Articles,  there- 
fore, says  the  writer  last  cited,  "though  frequently  added 
to  and  amended,  or  modified,  by  the  issue  of  subsequent 
articles,  continued  in  force,  side  by  side  with  the 
Mutiny  Act,  and  in  subordination  to  that  instrument, 
until  1879,  when  the  Mutiny  Act  and  Articles  of  War 
were  merged  in  an  enactment  known  as  the  Army 
Discipline  Act,  which,  as  re-enacted  in  the  Army  Act  of 
1 88 1,  is  still  in  force  throughout  the  British  Empire." ^^ 

'  Dicey,  Law  of  the  Constitution,  8th  ed.,  p.  305. 
1"  See  Davis,  op.  cit.  3,  Appendix  A. 
11  Davis,  op.  cit.  3. 


30  THE  ARMY  AND  THE  LAW 

The  double  aspect  of  the  English  statute,  consisting 
in  its  appropriating  money  for  the  army's  support  for 
only  one  year,  and  also  conferring  authority  to  punish 
offenses  against  discipline,  though  recognized  by  all 
having  occasion  to  examine  the  subject, ^^  was  over- 
looked by  the  framers  of  our  Constitution.  They  pro- 
vided that  no  sums  should  be  voted  for  the  support  of 
the  army  for  a  longer  period  than  two  years,  but  they 
did  not  provide  a  time  limit  for  statutory  provisions 
concerning  the  discipline  of  the  army.  Therefore,  the 
Act  of  1806  ^^  and  its  amendments,  now  recodified  by 
the  Act  of  1916,^^  constitute  that  permanent  statutory 
code  which  the  British  Army,  in  theory,  lacks.  But 
there  is  no  practical  difference  in  the  fundamentals  of 
the  two  establishments,  because,  despite  the  perman- 
ence of  our  military  code,  as  a  practical  matter  there 
would  be  no  army  for  its  governance  unless  Congress, 
every  two  years,  should  appropriate  the  funds  necessary 
for  that  purpose. 

As  these  Articles  apply  only  to  persons  who  may  be 
considered  parts  of  the  military  machine,  so  most  of  the 
offenses  they  prescribe  are  offenses  which  only  such 
persons  would  have  the  faculty  of  committing.  There  is, 
however,  one  exception.  In  time  of  war  the  Articles 
extend  to  the  case  of  a  spy,  as  therein  defined,  whether 
or  not  the  accused  person  wear  our  uniform,  or  be  en- 
titled to  wear  it,  or  be  a  citizen  or  alien.  A  most 
wholesome  Article,  as  it  stands  today  ^^  provides  that 

^2  See,  for  example,  dissenting  opinion  of  Woodbury,  J.,  in  Luther  v. 
Borden  (7  How.  i). 
"  Supra. 
»<  Supra. 
»6  Art.  82. 


MILITARY  LAW  AND  MILITARY  COURTS  31 

"any  person  who  In  time  of  war  shall  be  found  lurking  or 
acting  as  a  spy  in  or  about  any  of  the  fortifications, 
posts,  quarters  or  encampments  of  any  of  the  armies  of 
the  United  States,  or  elsewhere,  shall  be  tried  by  a 
general  court  martial  or  by  a  military  commission,  and 
shall,  on  conviction  thereof,  suffer  death."  Of  this 
Article  more  will  be  said  hereafter.  It  is  marked  now 
as  an  exception  to  the  proposition  that  the  Articles 
of  War  apply  only  to  persons  who,  as  therein  defined, 
compose  the  army's  personnel,  and  have  no  relation  to 
persons  who  have  not  assumed  the  status  of  soldier,  or 
assumed  some  other  connection  with  the  army  as  above 
defined. 

Outside  of  the  one  provision  applying  to  a  spy,  we 
need  go  no  further  for  a  classification  of  these  Articles 
than  the  statute  itself.  The  first  two  are  articles  of 
definition,  then  we  have  a  number  of  articles  relating  to 
the  composition  and  procedure  of  courts  martial  ^^ 
and  of  inquiry, ^^  and  then  come  the  punitive  articles. 
These  last  a  recent  official  book  ^^  has  divided  according 
to  the  following  headings,  which  speak  for  themselves: 
First:  Enlistment ^  Muster,  Return.  Second:  Deser- 
tion. Absence  without  leave.  Third:  Disrespect.  In- 
subordination. Mutiny.  Fourth:  Arrest.  Confine- 
ment. Fifth:  War  offenses.  Sixth:  Miscellaneous 
crimes  and  offenses. 

In  addition  to  the  Articles  of  War  we  find  the  army 
regulations.  These  stand  in  point  of  authority  next  to 
the  formal  enactments  of  Congress  and  the  decisions  of 
courts,  but,  like  any  other  departmental  regulations 

18  Arts.  3-53. 

*^  Arts.  97-103,  III,  113-116. 

"  U.  S.  Man.  for  Courts  Martial,  1917,  p.  193,  et  seq. 


32  THE  ARMY  AND  THE  LAW 

they  cannot,  for  their  validity,  conflict  with  these  higher 
laws.^^  They  are,  in  short,  merely  executive  or  adminis- 
trative rules.  In  the  same  category  may  be  placed 
general  orders  issued  from  time  to  time  from  any  grade 
of  command,  although,  of  course,  they  relate  more  to 
matters  of  administration  than  to  rules  of  conduct. 

In  time  of  war  there  is  a  certain  amount  of  additional 
code  law  governing  the  army  in  its  relations  with  the 
enemy,  both  armed  and  non-combatant.  Outside  of  the 
scanty  enactments  afforded  by  the  Declaration  of 
Paris,  the  first  code  of  the  laws  governing  the  conduct  of 
an  army  in  the  field  emanated  from  this  country  in  the 
stress  of  the  Civil  War.  That  war  will  be  remembered, 
among  other  things  which  have  placed  it  on  the  pages  of 
history,  "for  the  issuance  of  the  instructions  for  the 
government  of  the  armies  of  the  United  States  in  the 
field,  prepared  by  Dr.  Francis  Lieber  and  revised  by  a 
number  of  officers  of  the  United  States  Army.^^o  These 
instructions  constituted,  to  use  the  language  of  the 
writer  last  quoted,  the  first  comprehensive  codification 
of  the  laws  of  war.^^  Published  in  1863,  by  General 
Order  No.  100  of  the  War  Department,  this  code  was 
made  obligatory  on  the  armies  of  the  United  States  in 
their  operations  against  the  South,  and  was  so  recog- 
nized by  the  United  States  Supreme  Court.^^  It  was 
republished  at  the  time  of  our  Spanish  War.  No  gen- 
eral order  in  the  course  of  the  present  war  has  as  yet 
included  the  code,  but  its  principles,  nevertheless,  are  of 
force,  with  such  amendments  only  as  have  been  made 

"  Davis,  op.  cit.  6-7. 

20  Bordwell,  Law  of  War,  73. 

'^  Bordwell,  Law  of  War,  74. 

22  Ex  parte  Vallandigham,  i  Wall.  243. 


MILITARY  LAW  AND  MILITARY  COURTS         33 

by  our  government's  acceptance  of  international  con- 
ventions.23 

It  is  of  interest  to  note  in  this  connection  that  great  as 
was  the  Justinian  Code,  it  included,  with  respect  to  the 
military,  provisions  relating  only  to  the  governance  of 
the  army  and  matters  of  captured  property. ^^  Yet  there 
always  have  been  additional  laws  of  war,  for  Grotius,  in 
this  respect,  was  more  a  pioneer  of  progress  than  a  law- 
giver of  any  sort.  The  reader  need  be  neither  of  the  pro- 
fession of  arms  nor  of  the  bar  to  find  their  mention.  One 
has  only  to  pick  up  Caesar's  Commentaries  to  find  Ario- 
vistus,  the  German  King,  unctuously  reminding  the  great 
Roman  of  certain  of  the  customs  of  war  then  obtaining ;  ^^ 
Montaigne's  Essays  are  full  of  reflections  upon  the  cus- 
toms of  war  as  they  obtained  in  the  days  before  Grotius 
wrote.^^  The  regulations  which  Henry  V  promulgated  for 
the  guidance  of  the  semi-feudal  army  which  he  took  to  the 
field  of  Agincourt  and  the  resulting  occupation  of  large 
portions  of  France,  are  still  extant.^^  There  has  been 
growth  in  this  body  of  jurisprudence  of  course,  but  it 
would  be  no  true  and  healthy  body  did  it  not  grow.  From 
one  point  of  view,  one  of  our  judges  may  be  right  when  he 
says  that  "the  rules  introduced  into  modern  warfare  con- 
stitute so  many  voluntary  relinquishments  of  the  rights  of 
war. "28  but,  mutatis  mutandis,  the  same  may  be  said  of 
growth  in  the  common  law.    Still,  no  one  attempted  to 

23  See  Appendix  to  Birkhimer,  Military  Government  and  Martial  Law,  for 
the  present  state  of  the  Code  with  amendments. 

"  Bordwell,  op.  cil.  9-10.  Sherman,  Roman  Law  in  the  Modern  World, 
§1025. 

25  Caesar,  Gallic  War,  Book  i,  c.  44. 

26  Particularly  the  Fifteenth  Essay. 

27  Bordwell,  Law  of  War,  86. 

28  The  Rapid,  g  Cr.  154. 


34  THE  ARMY  AND  THE  LAW 

codify  this  law  until  1 863.  Lieber's  Code,  therefore,  how- 
ever open  to  criticism  though  it  may  be  in  minor  points, 
deserves  all  praise  as  a  pioneer  model,  and  as  one  of  the 
best  fruits  of  our  Civil  War. 

Let  us  now  turn  to  the  uncodified  portions  of  the  law. 
Here,  once  and  for  all,  let  it  be  noted  that  the  common 
law  courts  fully  recognize  the  existence  of  what  Mr. 
Justice  Story  called  "the  customary  military  law."^^ 
It  is  not  for  the  writer  to  define  or  classify  this  body  of 
law;  as  a  common  law  practitioner  he  must  remember 
the  words  of  an  English  colonial  judge  ^^  whose  view  has 
been  adopted  by  our  Supreme  Court,^^  that  "of  questions 
not  depending  upon  the  construction  of  statutes,  but 
upon  military  law  or  usage,  within  the  jurisdiction  of 
courts  martial,  military  or  naval  officers,  from  their 
training  and  experience  in  the  service,  are  more  compe- 
tent judges  than  the  courts  of  common  law/^  If  even 
"common  law  judges  have  no  opportunity,  either  from 
their  law  books  or  from  the  course  of  their  experience, 
to  inform  themselves," ^^  i^  would  be  presumptuous  for 

29  Martin  v.  Mott,  12  Wheat.  19. 

sf"  Perry,  J.,  in  Porret's  Case,  Perry's  Oriental  Cases,  414. 

31  Smith  V.  Whitney,  116  U.  S.  167.  To  the  same  effect  is  Kirkman  v. 
McClaughry,  160  Fed.  436,  where  the  court,  in  upholding,  on  habeas  corpus, 
the  validity  of  a  cumulative  sentence  inflicted  by  a  court  martial,  said: 
"Doubtless,  in  actual  practice,  many  common-law  rules,  deemed  applicable 
to  the  proceedings  of  courts  martial,  have  become  incorporated  into  the 
customary  military  law,  but  nothing  has  been  brought  to  our  notice  indicat- 
ing that  the  rule  relied  upon  by  the  appellant  was  deemed  applicable  to  such 
proceedings  in  England,  the  home  of  the  common  law,  or  that  it  is  recognized 
as  a  part  of  the  customary  military  law  of  the  United  States.  On  the  con- 
trary, we  learn  from  recognized  sources  of  authority  that,  in  the  military 
service,  it  is  a  well-established  and  long-continued  practice  to  regard  sen- 
tences of  courts  martial,  such  as  are  here  under  consideration,  as  cumulative, 
and  to  execute  them  consecutively,  one  upon  the  expiration  of  another  in  the 
order  of  their  imposition." 

'2  Porret's  Case,  supra. 


MILITARY  LAW  AND  MILITARY  COURTS         35 

the  writer  to  attempt  a  description  of  this  actual  body 
of  law.^^  All  he  can  do  Is  to  Indicate  Its  reaches. 

Take,  for  Instance,  the  procedure  of  courts  martial. 
All  matters  not  covered  by  the  Articles  of  War  are  gov- 
erned by  the  same  things  of  tradition.  We  need  give 
only  two  Instances.  Cumulative  sentences  are  Inflicted 
by  courts  martial,  although  no  express  authority  may 
appear  In  the  Articles  of  War.^^  An  even  more  striking 
Illustration  Is  afforded  by  the  wide  range  of  precedent 
concerning  the  offense  which  Is  defined  by  the  Articles  of 
War  ^^  as  conduct  unbecoming  an  officer  and  a  gen- 
tleman.^^ "The  92d  Article  of  War,  for  example,"  says 
General  Davls,^^  "does  not  prescribe  by  whom  the  oath 
shall  be  administered  to  witnesses  before  a  court  martial. 
By  the  custom  of  the  service  It  Is  administered  by  the 
Judge  Advocate.  So,  too.  In  a  case  where  Its  sentence 
is  discretionary,  a  court  martial  may  Impose  any  pun- 
ishment that  Is  sanctioned  by  the  custom  of  the  service, 
although  (In  the  cases  of  enlisted  men)  the  same  may 
not  be  included  in  the  list  of  the  more  usual  punish- 
ments contained  In  the  Manual  for  Courts  Martial." 

Another  body  of  unwritten  law  Includes  crimes 
which,  though  not  defined  In  the  Articles,  yet  apply  to 

33  It  is,  however,  doubtless  true,  as  stated  by  one  of  our  courts  "that  many 
common  law  rules,  deemed  applicable  to  the  proceedings  of  courts  martial, 
have  become  incorporated  into  the  customary  military  law,"  Kirkman  v. 
McClaughry,  i6o  Fed.  436;  and  it  is  interesting  to  see  how  in  this  connection 
the  Anglo-Saxon  instinct  for  precedent  has  shown  itself.  One  has  only  to 
read  such  a  standard  work  as  General  Davis'  Treatise  on  Military  Law  to 
note  how,  over  and  over,  precedents  are  cited  from  actual  decisions  or 
opinions  rendered  by  the  judge  advocate. 

^  Kirkman  v.  McClaughry,  160  Fed.  436. 

35  Art,  95. 

36  See  Carter  v.  McClaughry,  183  U.  S.  365,  22  Sup.  Ct.  Rep.  181. 

37  Davis,  Mil.  Law.  10. 


36  THE  ARMY  AND  THE  LAW 

the  soldier  in  time  of  war.  This  branch  of  law  is  called 
in  the  government's  publication  ^^  military  law  applied 
to  the  army,  it  being  defined  as  "military  power  extend- 
ing in  time  of  war,  insurrection  or  rebellion  over  persons 
in  the  military  service,  as  to  obligations  arising  out  of 
such  emergency  and  not  falling  within  the  domain  of 
military  law,  nor  otherwise  regulated  by  law." 

The  Articles  of  War  also  allow  (Art.  96)  for  punish- 
ment of  "offenses  prejudicial  to  the  service  though  not 
mentioned  in  these  Articles,"  and  this  again  gives  refer- 
ence to  the  unwritten  law  and  custom  of  the  army. 

Then  we  have  a  body  of  martial  law  which  is  applica- 
ble to  the  enemy,  whether  soldier  or  civilian;  this  dis- 
tinct branch  of  law  covering  not  merely  the  duties  and 
obligations  of  prisoners  of  war,  so  far  as  the  same  may 
not  be  expressed  in  the  written  law  comprised  in  Lie- 
ber's  Code  and  the  various  international  conventions, 
but  also  guiding  our  army  in  its  government  of  occu- 
pied enemy  country.  And  lastly  we  have  what  is  called 
by  many  writers  ^^  martial  law  at  home,  or  as  a  domes- 
tic fact;  "by  which  is  meant  military  power  exercised 
in  time  of  war,  insurrection  or  rebellion  in  parts  of  the 
country  retaining  their  allegiance,  and  over  persons 
and  goods  not  ordinarily  subject  to  it."^°  The  enforce- 
ment of  all  such  law  is  committed  to  military  courts,  but 
the  nature  of  these  courts  must  vary  iccording  to  the 
persons  subject  to  them. 

For  the  punishment  of  all  offenses  committed  by  per- 
sons comprising  part  of  the  military  establishment  as 

'8  Man.  for  Courts  Martial,  1917,  p.  2. 

33  See  Birkhimer,  op.  cit.  and  U.S.  Govt.  Man.  for  Courts  Martial,  191?. 
p.  I. 

40  U.  S.  Govt.  Man.,  p.  i. 


MILITARY  LAW  AND  MILITARY  COURTS         37 

defined  by  the  Articles  of  War, — we  have  already 
noted  the  classifications  of  these  offenses  made  by 
the  Articles — the  statutory  code  provides  a  system 
of  courts  whose  personnel  is  drawn  from  the  commis- 
sioned officers  of  the  army.  These  courts  are  defined 
respectively  by  the  Articles  as  general,  special  and  sum- 
mary courts  martial. ^^  A  general  court  martial  has 
power  to  try  any  person  subject  to  the  law  applying  to 
the  army,  for  any  crime  or  offense,  as  defined  by  either 
the  written  or  unwritten  law  w^hich  we  have  mentioned 
above  as  applying  to  members  of  the  forces.'^^  A  special 
court  martial  has  power  to  try  an  offense  committed  by 
any  person,  except  an  officer,  or  other  class  excepted  by 
the  Executive,  or  a  crime  or  offense  not  actually  pun- 
ishable by  the  Articles  of  War."^^  A  summary  court  mar- 
tial's  jurisdiction  is  still  more  restricted  by  eliminating 
therefrom  not  merely  officers,  but  cadets,  soldiers  hold- 
ing the  privilege  of  certificate  or  eligibility  to  promo- 
tion, and  objecting  non-commissioned  officers. ^^ 

The  procedure  of  these  courts  is  prescribed  by  the 
Articles  and  the  customs  of  war.^^  Needless  to  say  its 
existence  has  but  little  of  the  flavor  of  the  common  law. 
These  courts,  as  did  all  others  whose  origin  lay  without 
the  domain  of  the  common  law,  borrowed  their  forms  of 
procedure  from  Roman  sources.  The  practice  of  Roman 
courts  of  justice  has  never  departed  from  the  memories 
of  men  of  the  law.  Its  accents  persist  not  merely  in  our 
courts  of  probate  and  of  admiralty,  but  in  the  funda- 

«  Art.  3. 

«  Art.  12;   U.  S.  Govt.  Man.  21. 

«  Art.  X3;   U.  S.  Govt.  Man.  21. 

**  Art.  14;   U.  S.  Govt.  Man.  22-23. 

*^  See  U.  S.  Govt.  Man.,  p.  31,  e/  seq.  Davis,  op.  cit.  61  et  seq. 


38  THE  ARMY  AND  THE  LAW 

mentals  of  equity  practice ;  ^^  and  it  is  not  strange  that 
the  procedure  of  courts  martial  faintly  shadows  the 
same  mighty  tradition.  Indeed,  in  its  early  days  the 
court  martial,  then  presided  over  by  the  Earl  Constable 
of  England,  was  assisted  by  three  doctors  of  the  civil 
law/7 

This,  coupled  with  the  fact  that  the  jurisdiction  of  the 
court  martial  is  essentially  criminal,  gives  its  procedure 
an  added  interest.  The  practice  in  equity  is  a  daily 
reminder  of  the  civil  form  of  action  by  which  the 
grievances  of  Roman  citizens  were  redressed.  But, 
outside  of  the  practice  in  church  courts,  the  procedure 
of  the  court  martial  is  the  only  image,  in  any  common 
law  country,  of  the  practice  which  prevailed  in  the 
criminal  prosecutions  of  the  days  of  the  Empire.  It  is 
also  interesting  to  note  that  the  dual  position  of  the 
judge  advocate,  the  prosecutor  in  the  military  court,  as 
not  merely  counsel  for  the  government  but  also  the 
adviser  of  the  court,  in  the  way  of  doing  justice  to  the 
prisoner,  is  reflected  by  the  modern  oflice  of  district 
attorney  or  state  prosecutor,  an  institution  peculiar  to 
this  country.  Finally,  it  is  a  matter  of  gratification  to 
the  common  law  practitioner  that  these  courts  endeavor 
to  follow  the  rules  of  evidence  recognized  by  the  com- 
mon law,  and  also  to  follow  the  common  law  in  the 
definition  of  crimes,  so  far  as  such  crimes  may  also  be 
punishable  by  the  Articles  of  War.^^ 

«  See  Langdell  Eq.  PL,  p.  i,  et  seq. 

*''  Sherman,  op.  cit.    §  380;  Davis  op  cit.  13. 

*8  So  far  as  matters  of  evidence  are  concerned,  it  is  especially  interesting 
to  note  that  the  chapter  on  evidence  in  the  latest  government  manual  (cor- 
rected to  April  IS,  191 7)  has  had  the  benefit  of  the  labors  of  Professor  Wig- 
more,  "recently  constituted  a  major  and  judge  advocate  in  the  Officers'  Re- 
serve Corps."    (See  introduction  to  manual). 


MILITARY  LAW  AND  MILITARY  COURTS         39 

In  peace  or  in  war  these  courts  pursue  their  functions, 
having  jurisdiction  over  no  citizens  except  those  forming 
part  of  the  military  establishment,  with  the  single  excep- 
tion, which  has  already  been  noted,  of  the  case  of  a  spy 
in  time  of  war.  That  exception,  indeed,  so  far  as  the  one 
reported  case  which  has  been  found  indicates,  is 
strictly  construed  by  the  common  law  courts,  with  the 
result  that  no  such  jurisdiction  exists  to  try  an  alleged 
spy  after  the  close  of  a  war  for  an  act  done  while  the 
war  was  flagrant.^^ 

Nothing  of  a  civil  nature  attaches  to  the  jurisdiction 
of  these  courts,  they  having  no  power  to  entertain  a 
civil  suit  for  the  redress  of  any  injury  whatsoever.  As 
long  ago  stated  by  Lawrence,  J.,^''  "a  court  martial  can- 
not give  damages  for  injurious  conduct  as  a  jury  can." 
If  then,  a  member  of  the  forces  feels  injured  by  the  con- 
duct of  a  person  of  the  same  rank  or  a  superior,  the  only 
redress  afforded  him  is  to  ask  for  the  offices  of  another 
form  of  military  court,  the  court  of  inquiry,  which, 
after  investigating  the  matter,  can  report  its  conclu- 
sions. If  such  conclusions  demonstrate  the  commission 
of  a  military  offense,  the  accused  is  then  brought  before 
a  regular  court  martial  for  trial.^^  But  in  the  end  all 
such  procedure  gets  back  to  the  question  of  criminal 
prosecution,  and  thus  the  idea  of  reparation  of  wrong 
by  damages  or  restitution  is  wholly  excluded. 

Another  essential  feature  of  the  jurisdiction  of  such 
a  court  is  that  its  judgment  has  merely  an  advisory 
effect,  and  no  operation  until  it  has  received  the  ap- 

"  Re  Martin,  45  Barb.  142. 

M  Warden  v.  Bailey,  4  Taunt.  66. 

"  For  such  procedure  see  Davis  op  cit.  223,  et  seq. 


40  THE  ARMY  AND  THE  LAW 

proval  of  that  higher  branch  of  the  service  through 
whose  order  of  appointment  the  court  martial  received 
its  fiat  of  creation.^2  After  such  a  court  has  reported,  it 
"ceases  to  exist"  in  the  view  of  the  EngHsh  common  law 
courts  ;^^  but  if  General  Davis  is  right  in  his  suggestion 
that  a  new  trial,  though  rare,  is  yet  possible, ^"^  then  it 
may  be  questionable  whether  the  existence  of  the  court 
does  not  continue,  in  theory,  until  the  final  decision  of 
the  revisory  power.  This  revision  may  take  the  form 
of  a  total  disaffirmance  or  approval,  or  a  partial  ap- 
proval with  disaffirmance  of  portions  of  the  judgment 
not  approved.  From  the  moment  that  a  decision  is  ren- 
dered it  becomes  the  final  judgment  in  the  proceeding, 
and  is  valid  according  to  customary  military  law  as  rec- 
ognized by  our  common  law  courts,  even  though  por- 
tions of  the  sentence  have  been  disapproved  and  only 
the  remaining  portions  confirmed.^^  But,  to  repeat, 
there  is  no  final  judgment  in  the  case  until  the  appoint- 
ing power  has  confirmed  the  sentence  of  the  court 
martial. 

The  underlying  reason  for  this  is  very  interesting. 
The  military  court,  in  effect,  renders  no  judgment,  it 
merely  recommends  that  a  judgment  be  rendered.  The 
power  to  whom  this  recommendation  is  made  is  in 
effect  the  executive  power  of  the  army;  and  it,  as  we 
have  seen,  is  not  bound  to  accept  the  court's  report. 
The  court,  therefore,  is  really  but  a  committee,  which 
reports  its  findings  of  fact  and  conclusions  of  law  to  a 
non- judicial  superior,  whose  primary  function  is  of  an 

62  See  U.  S.  Govt.  Man.  182;   Davis  op  cit.  160. 

M  Matter  of  Poe,  5  B.  &  Ad.  681. 

^  Davis,  op  cit.  102. 

"  Carter  v.  McClaughry.  183  U.  S.  365,  22  Sup.  Ct.  Rep.  181. 


MILITARY  LAW  AND  MILITARY  COURTS  41 

executive  nature.  Essentially,  therefore,  the  powers  of 
judgment  and  of  punishment  are  intertwined  with  the 
power  of  direction.  The  common  law  conception  of  a 
court  whose  judgments  are  self-executing,  is  wholly 
lacking.  There  is,  of  course,  the  fact  that  originally 
by  custom,  and  since  the  first  Mutiny  Act  in  England, 
by  statute,  the  soldier  has  the  right  to  a  reference  of  his 
case  to  a  court  martial,  and  to  go  free  of  punishment 
unless  that  advisory  board  finds  him  guilty  of  the  acts 
for  which  punishment  is  eventually  awarded.  But 
obviously  the  mere  fact,  that  a  court  martial  derives  its 
power  from  statute,  does  not  alter  its  essential  character 
as  a  referee  rather  than  a  court  of  oyer  and  terminer. 
Finally,  it  should  be  observed  that  the  system  of  use 
in  our  army  excludes  entirely  the  practice  of  the  "drum 
head"  court  martial.  That  was  a  court,  held  for  the 
summary  trial  of  offenses  without  written  charges.  Of 
its  proceedings,  unless  capital  sentence  was  imposed,  no 
record  was  preserved.  This  practice  formed  a  vital  issue 
in  the  famous  case  of  Rex  v.  Wall.^*^  The  defendant, 
form.erly  the  military  governor  of  Goree,  was  tried  at 
the  Old  Bailey  for  causing  the  murder  of  a  soldier,  the 
latter  having  died  from  the  effects  of  a  flogging.  The 
principal  defense  was  that  the  soldier  had  been  con- 
victed of  mutiny  by  a  military  court,  that  the  sentence 
was  in  accordance  with  military  law,  and  that  the  de- 
fendant, in  causing  the  sentence  to  be  executed,  was 
merely  performing  his  duty  as  commander  of  the  place. 
The  Crown,  however,  claimed  that  there  had  never 
been  a  court  martial.  No  record  of  the  trial  had  been 
made,  and  the  evidence  was  that  the  alleged  trial  had 


42  THE  ARMY  AND  THE  LAW 

been  summary,  without  written  charges.  The  testi- 
mony showed  that  such  trials,  without  record,  were 
customary  for  minor  offenses,  but  that  where  such  a 
trial  involved  a  more  serious  offense,  it  was  customary 
to  make  a  record  and  transmit  it  to  headquarters  in 
London.  MacDonald,  C.  B.,  left  it  to  the  jury  as  a 
question  of  fact  whether  a  military  court  had  really  been 
convened,  whether  it  had  duly  tried  the  deceased,  and 
whether  it  had  sentenced  him;  if  so,  the  jury  should 
acquit.  The  evidence  was  conflicting,  but  the  jury 
convicted  the  prisoner.  No  such  situation  could  arise 
with  us,  because  the  record  of  every  trial,  even  by  a 
summary  court  martial,  is  preserved. ^^ 

The  Articles  of  War  are  careful  not  to  exclude  from 
their  prescriptions  relating  to  courts  martial  as  above 
defined,  "military  commissions,  provost  courts  or 
other  military  tribunals  of  concurrent  jurisdiction  in 
respect  to  offenders  or  offenses  that  by  the  law  of  war 
may  be  lawfully  triable"  by  such  court. ^^  The  jurisdic- 
tion of  these  courts  relates  to  matters  of  military  occu- 
pation and  martial  law  of  which  we  shall  hereafter 
speak.  It  is  enough  to  say  here  that  In  all  matters  of 
procedure,  they  are  governed  by  the  practice  obtaining 
in  regular  courts  martial  of  the  class  above  described. 

67  Manual  Courts  Martial,  Sects.  366-367. 
»  Art.  IS. 


IV 

THE  ARMY'S  RIGHT  OF 
SELF-REGULATION 

Our  investigation  has  shown,  it  is  to  be  hoped,  that, 
so  far  as  its  laws  and  the  correlative  rights  of  its  mem- 
bers are  concerned,  the  functioning  of  the  army  should 
be  a  matter  of  self-control.  The  commission  of  offenses 
against  the  law  and  custom  of  the  army,  on  the  part  of 
persons  who  are  members  of  it,  is  to  be  judged  by  the 
governing  powers  of  that  organization,  sitting  in  that 
respect  in  a  judicial  capacity;  and  the  sanction  of  such 
laws  is  also  a  matter  entirely  within  the  control  of  the 
organization.  One's  first  impression,  therefore,  might 
be  that  a  common  law  court  can  find  no  starting  point 
of  review,  in  a  controversy  involving  the  commission 
of  a  military  offense,  if  all  the  parties  to  that  contro- 
versy are  members  of  the  army. 

But  the  question  whether  a  particular  controversy 
was  one  within  this  exclusive  jurisdiction  or  not,  might 
well  involve  a  question  of  fact  or  of  law.  The  juris- 
diction of  a  court  martial  depends  upon  whether  the 
particular  delinquent  was  or  was  not  a  member  of  the 
forces.  Likewise  the  decision  or  act  of  a  commander 
would  depend,  for  its  immunity  from  common  law  adju- 
dication, upon  whether  or  not  it  was  justified  by  the 
powers  conferred  upon  that  commander  by  the  custom 
and  statutes  governing  the  organization  of  the  army. 


44  THE  ARMY  AND  THE  LAW 

Now  the  determination  of  that  question  cannot  be 
left  to  the  military  court  or  to  the  commander,  because 
to  do  that  would  be  to  deny  the  very  proposition  that 
there  are  limits  to  the  court  martial's  jurisdiction  or  the 
commander's  powers,  which,  of  course,  there  are.  Con- 
sequently it  is  for  the  common  law  court  to  decide,  in 
the  particular  case,  whether  the  military  court  had  juris- 
diction or  the  commander  had  power  to  act.  Naturally 
the  common  law  court  will  not  make  such  a  decision 
unless  somebody,  having  interest  in  the  premises,  in- 
vokes its  decision. 

That  can  be  done  in  a  number  of  ways.  First,  as  to 
the  court  martial:  If  a  party  is  imprisoned  under  the 
judgment  of  a  special  court,  he  has  the  right  by  means 
of  a  writ  of  habeas  corpus  to  test  the  question  whether 
the  special  court  had  the  power  so  to  commit  him.^ 
If  the  court  has  not  yet  proceeded  to  judgment,  the 
party  accused  may  apply  for  a  writ  of  habeas  corpus. 
And  finally  the  alleged  delinquent  may  bring  an  action 
for  damages  against  the  officer  of  the  court  who  exe- 
cutes its  judgment  of  punishment  upon  him.^  Second, 
as  to  the  act  of  an  officer:  If  the  person  injured  by  that 
act  believes  that  it  was  not  justified  by  any  lawful  au- 
thority, he  may  bring  an  action  for  damages  against  the 
officer  in  question. 

1  Of  the  numerous  instances  of  such  a  method  of  procedure  we  may  men- 
tion only  Carter  v.  McClaughry,  183  U.  S.  365,  22  Sup.  Ct.  Rep.  181; 
Rex  V.  Suddis.  i  East  306.  and  Kirkman  v.  McClaughry,  160  Fed.  436. 
In  England  it  has  been  claimed  that  the  courts  could  exercise  a  similar  juris- 
diction by  means  of  a  writ  of  prohibition,  but  such  a  writ  cannot  be  had  after 
the  military  court's  judgment  has  been  approved,  because  then  quo  ad  hoc  it 
has  ceased  to  exist,  Grant  v.  Gould,  2  H.  Bl.  69;  Matter  of  Poe,  6  B.  &  Ad. 
681. 

2  Instances  of  such  actions  may  be  found  in  Wise  v.  Withers,  3  Cr.  331, 
and  Dynes  v.  Hoover,  20  How.  65. 


ARMY'S  RIGHT  OF  SELF-REGULATION  45 

In  this  connection,  however,  our  dual  system,  of 
Federal  courts  and  State  courts,  intrudes  itself.  The 
State  courts  have  no  power,  by  means  of  habeas  corpus, 
to  take  the  body  of  a  prisoner,  held  for  court  martial, 
from  the  custody  of  the  officer  detaining  him,  and  hence 
they  must  dismiss  the  writ  on  a  return  being  made 
showing  that  the  prisoner  is  held  under  the  authority  of 
the  United  States  or  color  thereof.^  And  in  like  manner 
our  statutory  Articles  of  War  provide  ^  that  any  civil  or 
criminal  prosecution,  commenced  in  a  State  court 
"against  any  officer,  soldier,  or  other  person  in  the  mili- 
tary service  of  the  United  States,  on  account  of  any  act 
done  under  color  of  his  official  status,  or  in  respect  of 
which  he  claims  any  right,  title  or  authority,  under  any 
law  of  the  United  States  respecting  the  military  officers 
thereof,  or  under  any  law  of  war"  may  be  removed  for 
trial  into  the  United  States  District  Court  in  the  Dis- 
trict where  the  suit  or  prosecution  is  pending.  But  the 
Federal  courts  also  administer  the  common  law ;  so  the 
statutes  give  only  a  choice  of  civil  courts,  nothing  more. 

Now,  as  to  the  case  where  an  inferior  claims  that  he 
has  been  injured  by  the  conduct  of  a  superior:  The  de- 
fendant must  show  whether  he  acted  by  the  explicit 
order  of  one  still  higher,  or  under  the  general  authority 
of  standing  orders,  the  regulations,  or  the  Articles  of 
War.  In  the  latter  case  the  question  he  presents  is 
whether  his  act  was  within  his  jurisdiction  or  ultra 
vires;  but  in  the  former  case  his  act  was  purely  minis- 
terial, and  must  be  justified  as  such. 

3/m  re  Neill,  8  Blatch.  156;  Fed.  Cas.  10089;  Tarble's  Case,  13  Wall. 
397,  and  see  generally  Ableman  v.  Booth,  21  How.  506.  But  a  return  to  the 
writ  should  be  made,  Ex  parte  Field,  S  Blatch.  63;  Fed.  Cas.  4761. 

*  Act  of  Aug.  29,  1916;  39  Stat.  pt.  I,  c.  418,  p.  619,  Art.  117. 


46  THE  ARMY  AND  THE  LAW 

Taking  the  last  case  first,  the  defendant  Is  in  no  dif- 
ferent position  from  any  other  person  acting  in  a  minis- 
terial capacity,  and  is  entitled  to  the  same  measure  of 
protection  that  the  common  law  gives  in  such  cases. 

The  common  law  view  of  such  a  matter  is  clear.  The 
orders  of  a  superior  to  commit  a  wrong  do  not  excuse 
the  commission  of  it.  But  the  duty  of  obedience  must 
carry  a  certain  weight,  at  least  when  that  duty  springs 
from  the  obligation  of  public  service  rather  than  of  con- 
tract. From  this  consideration  has  grown  the  rule  that 
a  ministerial  officer,  when  executing  an  order  or  process 
**fair  on  its  face,"  is  not  liable  in  damages  should  it  de- 
velop that  the  process  or  direction  should  in  fact  not 
have  been  issued.^ 

There  is  no  reason,  according  to  the  weight  of  author- 
ity, why  this  rule  should  not  apply  to  the  soldier,  as  con- 
cerns a  ministerial  rather  than  a  discretionary  act. 
Obedience  is,  as  we  have  seen,  recognized  by  common 
law  courts  as  of  the  very  essence  of  military  service. 
If,  then,  the  orders  on  their  face  show  the  authority  of 
the  power  which  issued  them,  to  issue  them,  and  are  in- 
validated only  by  some  extraneous  fact  to  which  they 
bear  no  reference,  then  the  officer  who  acts  under  them 
is  protected  from  an  action  by  the  inferior  who  is  in- 
jured by  the  operation  of  these  orders  when  carried 
into  effect.  That  is  the  decision  of  Willes,  J.,  one  of  the 
greatest  of  common-law  judges,  in  Keighley  v.  Bell,^ 
where  the  plaintiff,  a  captain  in  the  British  service, 
sued  the  defendant,  a  general  therein.  In  granting  a 
non-suit  Willes,  J.,  expressed  the  opinion  that  "a  sol- 

6  See  Chegaray  v.  Jenkins,  s  N.  Y.  376. 
«  4  F.  &  F.  763. 


ARMY'S  RIGHT  OF  SELF-REGULATION  47 

dier,  acting  honestly  In  the  discharge  of  his  duty — that 
is,  acting  In  obedience  to  the  orders  of  his  commanding 
officer — is  not  Hable  for  what  he  does,  unless  it  be  shown 
that  the  orders  were  such  as  were  obviously  illegal.  He 
must  justify  any  direct  violation  of  the  personal  rights 
of  another  person  by  showing,  not  only  that  he  had 
orders,  but  that  the  orders  were  such  as  he  was  bound  to 
obey/'  The  rule  in  our  country  now  seems  to  be  to  the 
same  effect.  Despite  the  rather  broad  language  in 
Little  V,  Barreme,^  the  soldier,  like  any  other  public 
officer,  is  protected  by  orders  not  palpably  Illegal.^  The 
test  is  whether  the  order  was  such  that  "a  man  of  ordi- 
nary sense  and  understanding  would  know  that  it  was 
illegal."^  To  give  the  greater  point  to  the  proposition, 
it  should  be  remembered  that  Smith  v,  Shaw,^°  which 
held  to  the  opposite  effect,  has  been  overruled  in  its 
own  State,  the  courts  of  New  York  finally  coming  to  see 
no  distinction  between  a  soldier  and  any  other  public 
officer  when  acting  under  a  direct  order.  ^^ 

Now  let  us  turn  to  the  officer  whose  act  follows  the 
exercise  of  discretionary  power.  It  is  then  wholly  a 
question  of  ultra  vires  or  intra  vires — a  question,  in 
short,  of  jurisdiction. 

That  question,  from  the  viewpoint  of  a  common  law 
court,  depends  entirely  upon  the  scope  of  the  de- 
fendant's powers,  as  defined  by  the  law  of  the  army, 

">  2  Cr.  170. 

8  Riggs  V.  State,  3  Coldw.  Tenn.  85;  U.  S.  v.  Cutler,  i  Curt.  501,  Fed. 
Cas.  14910;  U.  S.  V.  Clarke,  31  Fed.  710;  Webb's  Pollock  on  Torts  144; 
I  Stephen,  Hist.  Criminal  Law  205;   Burdick,  Torts,  2d  ed.  42. 

9  U.  S.  V.  Clarke,  supra. 
1"  12  Johns.  257. 

"  Savacool  v.  Boughton,  s  Wend.  170;  Chegaray  v.  Jenkins,  s  N.  Y. 
376. 


48  THE  ARMY  AND  THE  LAW 

whether  that  law  be  found  in  the  Constitution,  or  in  the 
codified  or  the  uncodified  portions  of  the  miHtary  law. 
This  rule  applies  to  all  persons  in  the  service,  from  the 
President,  its  commander-in-chief,  down  through  the 
non-commissioned  officer. 

When  Congress  has  conferred  upon  the  President 
power  to  draft  the  militia  into  the  national  service, 
whenever  a  national  exigency  requires  it,  then  the 
President  is  vested  with  jurisdiction  to  decide  whether 
an  emergency  has  arisen  of  a  nature  justifying  his 
calling  the  draft.  Such  was  the  decision  in  Martin  v. 
Mott,^^  where  Mr.  Justice  Story,  speaking  for  the  court, 
said :  "that  the  authority  to  decide  whether  the  exigency 
has  arisen  belongs  exclusively  to  the  President,  and  that 
his  decision  is  conclusive  upon  all  other  persons.  .  . 
A  prompt  and  unhesitating  obedience  to  orders  is  indis- 
pensable to  the  complete  attainment  of  the  object.  The 
service  is  a  military  service,  and  the  command  of  a  mili- 
tary nature;  and  in  such  cases  every  delay,  and  every 
obstacle  to  an  efficient  and  immediate  compliance, 
necessarily  tend  to  jeopard  the  public  interests."  But 
where  Congress,  with  whom  exclusively,  under  the  Con- 
stitution, the  war-making  power  resides,  has  not  given 
the  President  power  to  institute  hostile  acts  against  a 
particular  country,  then  any  direction  by  him,  for  the 
commission  of  an  act  of  war  against  the  subjects  of  such 
a  country,  is  wholly  unauthorized.^^ 

It  is  so  all  the  way  down :  The  defendant  must  show, 
to  avoid  the  condemnation  of  a  common  law  court,  that 
the  act  which  he  directed,  or  the  decision  which  he 

"  12  Wheat.  19. 

"  Little  V,  Barreme,  2  Cr.  170. 


ARMY'S  RIGHT  OF  SELF-REGULATION  49 

made,  was  within  the  scope  of  the  powers  conferred 
upon  him.  If  the  act  or  decision  was  within  the  de- 
fendant's lawful  powers,  then  an  error  of  judgment 
cannot  deprive  him  of  the  protection  of  his  office.  He  is 
liable  for  no  such  error.  Only  one  thing  can  deprive  him 
of  the  protection  which  he  thus  derives  from  his  office, 
and  that  is  express  malice.  In  such  a  case  the  plaintiff's 
grievance  is  really  of  oppression,  of  abuse  of  office.  In 
the  absence  of  that,  the  defendant  cannot  be  held,  al- 
though, as  member  of  a  court  martial,  he  joined  in  an 
erroneous  decision, ^^  or,  as  the  commander  in  battle, 
gave  a  most  ill-timed  order.  ^^ 

In  the  absence  of  a  showing  of  express  malice  then, 
our  inquiry  is  confined  to  the  nature  and  extent  of  the 
defendant's  powers.  He  must  derive  those  powers  from 
one  or  the  other  of  the  sources  of  law  and  authority  gov- 
erning the  existence  and  operations  of  the  army.  If  he 
cannot  do  so,  there  is  but  one  view  that  the  common  law 
court  can  take.  The  act,  not  being  justified  by  any 
portion  of  military  law  or  regulation,  naturally  cannot 
find  justification  in  any  principle  of  common  law. 
For  that  reason  an  action  by  an  inferior  against  a 
superior  has  no  analogy  to  a  suit  for  malicious  prose- 
cution. The  latter  action  postulates  that  previously 
a  legal  proceeding  was  instituted  against  the  plain- 
tiff by  the  defendant,  though  without  just  cause.  But 
when  a  sergeant  sues  his  captain  for  damages  for  as- 
sault, the  essential  inquiry  is  whether  the  captain's 
action  was  justified  by  military  law.  If  it  was  not,  then 
the  captain's  act  lacked  any  element  of  legality  under 

^*  Dawkins  v.  Lord  Rokeby,  L.  R.  7  H.  L.  744, 
"  Sutton  V.  Johnson,  i  T.  R.  510. 


50  THE  ARMY  AND  THE  LAW 

common  law,  and  the  question  whether  or  not  he  had 
cause  to  perform  the  act  is  wholly  immateral.^^ 

Two  cases  illustrate  the  proposition.  If,  at  sea,  a 
sailor  should  claim  that  the  time  of  his  enlistment  had 
expired,  and  that  he  should  thenceforth  be  carried  as  a 
passenger  or  put  ashore,  it  is  for  the  commander  to 
judge  this  question.  In  the  absence  of  bad  faith,  the 
decision  of  the  commander  is  final  and  the  sailor  has  no 
right  of  action  against  him  for  damages  resulting  from 
his  continued  detention.  That  is  Dinsman  v,  Wilkes. ^^ 
"If,"  said  the  Supreme  Court,  "in  his  judgment  the  plain- 
tiff was  entitled  to  his  discharge,  it  was  his  duty  to  give 
it,  even  if  it  was  inconvenient  to  weaken  the  force  he 
commanded.  But  if  he  believed  he  was  not  entitled,  it 
was  his  duty  to  detain  him  in  the  service.  Captain 
Wilkes  might  err  in  his  decision.  But  that  decision,  for 
the  time  being,  was  final  and  conclusive ;  and  it  was  the 
duty  of  the  plaintiff  to  submit  to  it,  as  the  judgment  of 
the  tribunal  which  he  was  bound  by  law  to  obey;  and 
for  any  error  of  judgment  in  this  respect,  no  action 
would  lie  against  the  defendant."  ^^  In  the  other  case 
the  defendant,  a  company  commander,  established  a 
school  for  the  education  of  non-commissioned  officers, 
the  expenses  of  the  school  to  be  deducted  from  their 
pay.  The  plaintiff,  a  sergeant,  declining  to  go  to  school, 
the  defendant  ordered  him  under  arrest,  to  be  held  for  a 
summary  court  martial.  The  court  martial  acquitted 
him,  and  then  he  sued  the  defendant  for  false  arrest.  On 
its  first  hearing,  these  being  the  only  facts  on  the  record, 

"  Dinsman  v.  Wilkes,  12  How.  390;  Johnson  v.  Sutton,  i  T.  R.  546. 

1'  12  How.  390. 

"  Dinsman  v.  Wilkes  (supra). 


ARMY'S  RIGHT  OF  SELF-REGULATION  51 

and  It  appearing  that  the  Articles  of  War  and  regula- 
tions conferred  no  authority  on  a  regimental  com- 
mander to  establish  any  such  school,  or  to  deduct  pay 
from  any  non-commissioned  officer  for  the  support  of 
such  a  school,  the  court  held  that  a  verdict  for  the  de- 
fendant should  be  set  aside,  and  a  new  trial  ordered. ^^ 
On  the  new  trial  the  defendant  offered  evidence  that  the 
plaintiff  had  not  merely  refused  to  attend  school  him- 
self, but  had  counseled  other  non-commissioned  officers 
to  do  the  same,  this  advice  being  given  in  a  public 
tavern  adjoining  the  barracks,  and  with  much  pro- 
fanity and  abuse  of  his  officer.  The  court  held  that  it 
was  error  to  exclude  this  evidence,  since  it  would  have 
justified  the  defendant,  as  it  was  within  the  scope  of  his 
powers  and  authority,  to  order  the  arrest  of  the  plain- 
tiff, for  the  action  of  a  court  martial,  on  the  charge  of 
conduct  to  the  prejudice  of  good  order  and  military  dis- 
cipline. Consequently  a  second  verdict  for  the  plaintiff 
was  set  aside.2°  Thus  the  officer  had  no  right  to  cause 
the  sergeant's  arrest  for  refusing  to  go  to  school,  but  he 
did  have  authority  to  cause  his  arrest  for  loud,  public 
and  boisterous  abuse  of  his  superior  officer,  in  a  public 
house  adjoining  the  barracks.  Whether  the  plaintiff 
was  guilty  of  the  acts  charged  before  the  court  martial 
was  immaterial;  the  question  was  whether  these  acts, 
if  shown,  were  such  as  constituted  an  offense  justiceable 
before  the  court  martial ;  and  the  officer  acted  within  the 
scope  of  his  powers  when,  in  the  reasonable  belief  that 
such  acts  had  been  committed,  he  ordered  the  arrest  of 
his  subordinate  for  the  action  of  the  court  martial. 

1*  Warden  v.  Bailey,  4  Taunt.  65. 
20  Bailey  v.  Warden,  4  M.  &  S.  400. 


52  THE  ARMY  AND  THE  LAW 

If,  decided  by  the  criteria  above  given,  the  superior 
has  in  fact  injured  his  inferior,  then  the  fact  that  the 
latter  could  have  his  superior  punished  by  court  martial 
would  not  oust  the  jurisdiction  of  the  common  law  court 
to  maintain  an  action  for  damages  against  the  superior. 
As  was  observed  in  the  case  last  cited,  by  Lawrence,  J., 
"a  court  martial  cannot  give  damages  for  injurious  con- 
duct as  a  jury  can."  But  that  reason  does  not  strike 
deep  enough.  The  real  proposition  is  simply  whether 
the  superior  exceeded  his  jurisdiction.  If  he  did,  then 
the  question  of  the  military  status  of  the  opposing  par- 
ties becomes,  as  a  matter  of  logic,  purely  accidental. 

It  will  thus  be  seen  that,  in  determining  the  scope  of 
the  officer's  power,  the  court  must  look  to  the  military 
law,  codified  and  uncodified,  and  to  that  extent  it  may 
be  said  to  pass  upon  questions  of  military  law.  But  it 
does  so  only  for  the  purpose  of  settling  the  question  of 
jurisdiction. 

The  point  of  view  which  the  court  adopts,  however, 
in  the  effort  to  ascertain  the  scope  of  the  officer's  powers, 
is  modified,  to  a  more  or  less  indefinable  degree,  by  the 
circumstances  of  war  on  the  one  hand  and  of  peace  on 
the  other.  A  military  force  quartered  at  home,  not  in 
the  theater  of  war,  is  governed  by  considerations  that 
will  not  apply  to  an  army  in  the  field,  in  full  campaign; 
and  the  court,  in  determining  the  scope  of  the  officer's 
powers,  will  take  this  into  consideration.  This  is  illus- 
trated by  two  English  cases,  which  remain  today  of  full 
authority. 

In  Barwis  v.  Keppel  ^^  the  plaintiff,  a  former  sergeant, 
sued  the  defendant,   his  regimental  commander,  for 

»  2  Wils.  314. 


ARMY'S  RIGHT  OF  SELF-REGULATION  53 

damages  for  reducing  him  from  the  grade  of  sergeant. 
It  appeared  that  this  act  occurred  while  the  regiment 
was  in  service  in  Germany.  The  court  held  that  the 
action  would  not  lie  for  two  reasons :  the  first  being  that 
the  Articles  of  War  apply  to  the  army  only  when  it  is 
within  the  realm,  and  outside  the  realm  the  royal  prerog- 
ative in  the  government  of  the  army  is  not  restrained  by 
the  Articles  of  War.  This  point  would  not  apply  to  our 
establishment,  as  our  Articles  of  War,  with  certain  ex- 
ceptions which  they  themselves  define,  go  with  the 
army  wherever  it  may  be,  at  home  or  abroad.  But  the 
second  point  is  of  more  interest.  The  court  said  that 
^'flagrante  hello,  the  common  law  has  never  interfered 
with  the  army;  inter  arma  silent  leges. ^^ 

In  Johnston  v.  Sutton  ^^  the  plaintiff  commanded  a 
line  of  battle  ship  forming  part  of  the  force  under  the 
command  of  the  defendant,  an  admiral,  in  an  action 
with  the  enemy.  The  defendant  ordered  the  plaintiff 
to  make  a  certain  manoeuvre,  which  the  plaintiff  failed 
to  do.  The  defendant  suspended  the  plaintiff  from 
command,  put  him  under  arrest,  and  thus  kept  him 
until  his  trial  by  court  martial  on  the  charge  of  disobey- 
ing orders.  The  court  martial  acquitted  the  plaintiff, 
and  thereupon  he  sued  for  damages  for  false  imprison- 
ment. It  appeared  that  the  action  of  the  court  martial 
was  based  on  the  fact  that  it  was  physically  impossible 
for  the  plaintiff  to  obey  the  order.  The  Court  of  Ex- 
chequer Chamber  held  that  the  plaintiff  could  not  re- 
cover, and  this  was  affirmed  by  the  House  of  Lords.^^ 
The  reasoning  of  the  Exchequer  Chamber,  as  expressed 

22  Supra. 

23  I  Bro.  P.  C.  76. 


54  THE  ARMY  AND  THE  LAW 

by  Lord  Loughborough,  was  substantially  this :  Nothing 
could  excuse  the  plaintiff  for  disobedience  to  orders  but 
physical  impossibility.  The  commander  had  a  right  to 
have  that  question  determined  by  court  martial,  and 
therefore  had  the  right  to  send  the  plaintiff  before  the 
court  martial,  in  the  regular  way  of  suspending  him  from 
command  and  putting  him  under  arrest.  If  the  com- 
mander had  done  this  purely  from  motives  of  persecu- 
tion, the  plaintiff  could,  by  means  of  a  court  of  inquiry, 
have  had  the  grievance  redressed,  without  damages  it 
is  true,  but  redressed  so  far  as  his  honor  was  concerned ; 
and  all  of  this  lay  exclusively  within  the  jurisdiction  of 
the  military  courts.  Hence  "every  reason  which  requires 
the  original  charge  to  be  tried  before  a  military  juris- 
diction, equally  holds  to  try  the  probable  cause  by  that 
jurisdiction,"  and  the  defendant's  act,  if  anything,  is  a 
"mere  military  offense." 

It  is,  therefore,  with  substantial  basis  of  authority 
that  our  Supreme  Court,  in  discussing  the  liability  of 
officers,  draws  a  distmction  between  the  rule  in  time  of 
peace  as  "different  from  the  rule  in  time  of  war,  and  in 
the  presence  of  actual  hostilities."  ^^ 

The  same  considerations  figure  with  the  courts  in  de- 
termining the  question  of  a  court  martial's  jurisdiction. 
The  common  law  court  asks  only  one  question,  did  the 
court  martial  have  jurisdiction? — and  guides  its  own 
conduct  accordingly.  If  it  did  not,  then  the  court  must, 
on  a  habeas  corpus  proceeding,  discharge  the  petitioner 
from  custody,  or  in  an  action  for  damages  proceed  to 
judgment.  If  a  commitment,  by  any  such  special  court, 
"be  against  law,  as  being  made  by  one  who  had  no  juris- 

2*  Bates  V.  Clark,  95  U.  S.  204. 


ARMY'S  RIGHT  OF  SELF-REGULATION  55 

diction  in  the  case,  or  a  matter  for  which  by  law  no  man 
ought  to  be  punished,"  the  common  law  court  ought  to 
discharge.^^  "If  a  court  martial,"  says  the  Supreme 
Court,  "has  no  jurisdiction  over  the  subject  matter  of 
the  charge  it  has  been  convened  to  try,  or  shall  inflict  a 
punishment  forbidden  by  the  law,  though  its  sentence 
shall  be  approved  by  the  officers  having  a  revisory  power 
of  it,  civil  courts  may,  on  an  action  by  a  party  aggrieved 
by  it,  inquire  into  the  want  of  the  court's  jurisdiction, 
and  give  him  redress."  ^^  It  follows  then  that  there  is 
one  issue  of  fact  or  of  law  which  the  court  martial  cannot 
conclusively  determine,  and  that  is  the  question  of 
jurisdiction.  This  is  clearly  shown  by  such  cases  as 
Wise  V.  Withers,^^  Martin  v.  Mott,^^  and  Dynes  v. 
Hoover.^^ 

In  Wise  v.  Withers  and  Martin  v.  Mott  ^^  the  plaintiff 
brought  suit  against  the  officer  who  executed  the  judg- 
ment of  a  court  martial,  the  judgment  taking  the  form 
of  a  fine.  The  officer,  to  satisfy  the  fine,  levied  upon  the 
plaintiff's  goods.  In  Martin  v.  Mott  the  plaintiff 
brought  replevin  for  the  goods,  and  in  Wise  v.  Withers 
the  plaintiff  brought  an  action  of  trespass  for  damages. 
The  plaintiff  failed  to  recover  in  Martin  v,  Mott  because 
the  Supreme  Court  held  that  he,  being  a  member  of  the 
New  York  militia,  was  subject  to  the  jurisdiction  of  the 
court  martial  from  the  moment  when  the  order  was 
issued  drafting  the  New  York  militia  into  the  national 

25  Bac.  Abr.  Habeas  Corpus,  Sect.  10;  Ex  parte  Siebold,  100  U.  S.  371. 

20  Dynes  v.  Hoover,  20  How.  65. 

2^  3  Cr.  331. 

28  12  Wheat.  19. 

2»  Supra. 

80  Supra. 


56  THE  ARMY  AND  THE  LAW 

service.  The  court,  therefore,  having  jurisdiction,  the 
sole  question  involved  in  the  replevin  action  was  de- 
termined against  the  plaintiff.  In  Wise  v.  Withers,  on 
the  contrary,  the  plaintiff  was  a  justice  of  the  peace  of 
the  District  of  Columbia,  and  the  question  was  whether 
or  not  he  was  such  a  judicial  officer  as  to  be  exempt  from 
militia  duty  in  the  District  under  the  Militia  Act,  relat- 
ing to  the  District,  of  March  3,  1803.  The  Supreme 
Court  held  that  a  justice  of  the  peace  was  a  judicial 
officer,  and  hence  the  court  martial  had  no  jurisdiction 
to  impose  the  fine;  the  court  saying:  "It  follows,  from 
this  opinion,  that  a  court  martial  has  no  jurisdiction 
over  a  justice  of  the  peace,  as  a  militiaman;  he  could 
never  be  legally  enrolled;  and  it  is  a  principle,  that  a 
decision  of  such  a  tribunal,  in  a  case  clearly  without  its 
jurisdiction,  cannot  protect  the  officer  who  executes  it. 
The  court  and  the  officer  are  all  trespassers."^^ 

In  Dynes  v.  Hoover  ^^  the  plaintiff,  a  seaman  in  the 
Navy,  was  convicted  by  a  court  martial  of  attempting 
to  desert  and  sentenced  to  imprisonment.  He  brought 
an  action  for  damages  against  the  officer  executing  the 
sentence  of  imprisonment.  It  was  held  that  he  could 
not  recover  because,  he  being  in  the  service,  the  court 
martial  had  jurisdiction;  the  court  using  language 
which  disposes  of  the  entire  question:  "A  judge,  or  any 
person  acting  by  authority  as  such,  where  he  has,  over 
the  subject  matter  and  over  the  person,  a  general  juris- 
diction which  he  has  not  exceeded,  will  not  be  liable  to 
have  his  judgment  examined  in  an  action  brought 
against  himself;  but  if  jurisdiction  be  wanting  over  the 

»i  Wise  V.  Withers,  3  Cr.  331,  337. 
82  Supra. 


ARMY'S  RIGHT  OF  SELF-REGULATION  57 

subject  matter,  and  over  the  person,  such  judgment 
would  be  examinable. "^^ 

Nor  can  there  be  any  direct  review  by  a  common  law 
court  of  a  court  martial's  decision.  The  court  martial 
may  err  in  matters  of  evidence,  but  no  common  law 
court  can  say  that  its  judgment  was  void  for  that.^^ 
It  may  err  in  its  conception  of  the  elements  of  the  crime 
charged,  yet  if  it  has  jurisdiction  to  try  the  accused,  its 
error,  even  in  such  a  substantive  matter,  cannot  be  re- 
viewed in  a  common  law  court.^^  Such  errors,  as  any 
lawyer  knows,  are  reviewable  only  by  way  of  appeal; 
but  there  must  be  some  machinery  of  appellate  proce- 
dure provided,  before  the  rulings  of  a  court  martial,  of 
the  class  described,  can  get  before  the  common  law 
court.  Appeal  is  not  a  matter  of  common  law,  but 
always  of  statute,  and  therefore  the  common  law  court 
must  look  to  a  statute  giving  it  appellate  powers 
concerning  actions  of  courts  martial.  There  are  no  such 
statutes  in  this  country.  Until  1907  courts  martial 
formed  no  part  of  the  judicial  system  of  either  Great 
Britain  or  the  United  States.^^  In  that  year  the  English 
statute  creating  the  new  Court  of  Criminal  Appeal  gave 
it  jurisdiction  of  appeals  from  courts  martial, ^^  but  we 
have  no  such  law.  No  collateral  attack,  whether  by 
means  of  a  writ  of  habeas  corpus,  to  relieve  a  prisoner 
from  the  custody  of  a  court  martial,^^  or  action  for 
damages  against  an  officer  acting  within  the  scope  of  his 

33  Dynes  v.  Hoover  (supra). 
^  Grant  v.  Gould,  2  H.  Bl.  69. 

35  Rex  V.  Suddis,  i  East  306. 

36  Ex  parte  Valandigham,  i  Wall.  243. 
"  Stat.  7  Edw.  VII,  c.  23,  Sect.  3- 

39  Ex  parte  Reed,  100  U.  S.  13;  Barrett  v.  Crane,  16  Vt.  246. 


58  THE  ARMY  AND  THE  LAW 

powers,^^  can  bring  up  for  review  any  matters  except 
those  of  jurisdiction.  "The  single  inquiry,  the  test,  is 
jurisdiction."  ^^  The  Supreme  Court,  also,  has  anxiously 
stated  that  it  "must  not  be  understood  by  anything  we 
have  said,  as  intending  in  the  slightest  degree  to  impair 
the  salutary  rule  that  the  sentences  of  courts  martial,  when 
affirmed  by  the  military  tribunal  of  last  resort,  cannot 
be  revised  by  the  civil  courtssaveonly  when  void  because 
of  an  absolute  want  of  power,  and  not  merely  voidable 
because  of  the  defective  exercise  of  power  possessed." ^^ 
The  proposition  thus  laid  down  must  not  be  confused 
with  the  special  power  conferred  by  the  Selective  Service 
Act  on  the  draft  tribunals.  The  very  function  of  a 
draft  board  under  the  statute  is  to  decide  whether  or 
not  the  candidate  is  within  the  class  prescribed  by  stat- 
ute, and  hence  its  decision,  though  involving  the  very 
question  of  status,  should  not  be  open  to  review 
through  habeas  corpus  or  otherwise  by  a  common  law 
court.^2  The  question  of  status,  therefore,  under  the 
present  system,  can  remain  for  a  common  law  court  to 
determine  only  in  the  cases  of  members  of  the  National 
Guard  or  regular  army,  on  whose  status  the  draft  exam- 
ination boards  do  not  pass.^^ 

"  Dynes  v.  Hoover  (supra). 

«  In  re  Grimley,  137  U.  S.  147.  n  Sup.  Ct.  Rep.  54. 

«  Carter  v.  McClaughry,  183  U.  S.  365,  22  Sup.  Ct.  Rep.  181. 

*^  Ex  parte  Troiana,  245  Fed.  360;  Angelus  v.  Sullivan,  246  Fed.  54;  U.  S. 
V.  Kinkead,  248  Fed.  141;  Frank  v.  Murray,  248  Fed.  865;  Blackington  v. 
U.  S.,  248  Fed.  124;  Summertime  v.  Local  Board,  248  Fed.  832.  It  was  de- 
cided otherwise,  however,  under  the  Draft  Act  of  the  Civil  War.  Antrim's 
Case,  5  Phila.  288.  The  rule  so  far  established  under  the  present  statute  is 
more  consonant  with  reason.  Of  course,  judicial  relief  will  be  given  if  the 
board  should  deny  the  candidate  an  opportunity  to  be  heard  before  it. 
Angelus  v.  Sullivan,  (supra). 

*'  See  ex  parte  Dostal  (supra). 


ARMY'S  RIGHT  OF  SELF-REGULATION  59 

Only  one  thing  more  remains  for  notice,  and  that  is 
the  extent  of  the  concurrent  jurisdiction  of  courts 
martial  and  common  law  courts.  Many  of  the  Articles 
of  War  treat  as  offenses  against  military  discipline  acts 
which  also  constitute  crimes;  murder  and  rape,  indeed, 
being  excepted  from  the  Articles  of  War  in  time  of 
peace,  when  such  acts  are  committed  "within  the  geo- 
graphical limits  of  the  States  of  the  Union  and  the  Dis- 
trict of  Columbia." ^'^  Now,  if  a  soldier's  wrongful  act 
constitutes  at  the  same  time  an  offense  against  military 
discipline,  punishable  by  a  court  martial,  and  a  crime 
forming  the  subject  for  prosecution  in  a  civil  court, 
it  is  obvious  that  neither  tribunal  can  say  that  the 
other  has  no  jurisdiction.  The  only  thing  that  can  be 
said  is  that  the  jurisdictions  are  concurrent.  'We  do 
not  mean,"  said  the  Supreme  Court,  "to  intimate  that  it 
was  not  within  the  competency  of  Congress  to  confer 
exclusive  jurisdiction  upon  military  courts  over  offenses 
committed  by  persons  in  the  military  service  of  the 
United  States."  ^^  But  the  fact  is  that  Congress  never 
took  any  such  action.  Of  this  proposition  there  has 
never  been  any  doubt,  heretofore,  even  in  time  of  war.'^^ 
Recently,  however,  a  District  Court  has  decided  that  a 
court  martial  has  jurisdiction,  exclusive  of  that  of  the 
appropriate  State  court,  of  a  charge  of  murder  when 
committed  by  a  soldier  in  the  streets  of  a  Kentucky  town 

**  Article  of  War  92.  Prior  to  the  first  Mutiny  Act  desertion  was  a 
felony  at  common  law,  Rex  v.  Beal,  3  Mod.  124,  but  the  effect  of  that 
statute  was  to  make  it  purely  a  military  offense  (See  re  Cadwalader.  127 
Fed.  881). 

*^  Coleman  v.  Tennessee,  97  U.  S.  509. 

'*«  Coleman  v.  Tennessee  (supra);  Franklin  v.  U.  S.,  216  U.  S.  559,  30 
Si|p.  Ct.  Rep,  434. 


6o  THE  ARMY  AND  THE  LAW 

not  under  military  control.^^  But  the  court's  reasoning 
lacks  cogency,  because  it  is  based  on  Coleman  v. 
Tennessee,^^  whereas  that  case,  dealing  as  it  did  with  a 
crime  committed  in  a  hostile  district,  under  military 
occupation,  contains  no  dictum  that  is  applicable  to 
a  crime  committed  in  an  American  town  in  which  no 
conditions  of  military  control  exist.  Certainly  the 
writer  can  find  nothing  in  the  Articles  of  War  to  war- 
rant the  court's  conclusion. 

What  is  meant  by  concurrent  jurisdiction  is  that  if 
one  court  does  not  act,  the  other  may^  The  Seventy- 
fourth  Article  of  War  gives  precedence,  at  least  in  time 
of  peace,  to  the  civil  jurisdiction,  by  requiring  offenders 
to  be  handed  over  to  the  civil  authorities ;  ^^  but  if  the 
civil  authorities  do  not  take  the  proper  steps  to  prose- 
cute the  offender,  then  it  is  "the  clear  duty  of  the 
military  to  bring  him  to  trial  under  that  jurisdiction."  ^° 
When  the  accused  is  put  upon  his  trial  in  either  of  two 
courts  having  jurisdiction,  the  fact  that  the  other  court 
could  have  tried  him,  had  a  proceeding  to  that  effect 
been  seasonably  instituted,  constitutes  no  defense  in 
substance  or  in  form,  and  this  indifferently,  whether  the 
court  to  which  objection  is  made  be  the  military  ^^  or  the 
civil  court.^^ 

In  this  connection  we  must  not  be  confused  by  ques- 
tions of  jurisdiction  as  between  State  courts  and  Federal 
courts.    Federal  legislation  has  given  criminal  jurisdic- 

47  Ex  parte  King,  247  Fed.  868. 
«  97  U.  S.  509.    See  infra,  Ch.  VI. 
«  See  U.  S.  V.  Lewis,  129  Fed.  823. 
60  Ex  parte  Mason,  105  U.  S.  696. 

"  Ex  parte  Mason  {supra);  Carter  v.  Roberts,  177  U.  S.  496,  20  Sup.  Ct. 
Rep.  713;   Carter  v.  McCiaughry  {supra). 

62  Franklin  v.  U.  S..  216  U.  S.  559.  30  Sup.  Ct.  Rep.  434. 


ARMY'S  RIGHT  OF  SELF-REGULATION  6i 

tion  to  Federal  courts  over  offenses  committed  within 
certain  Federal  territory,  such  as  government  reserva- 
tions, etc.^^  This  has  resulted  in  a  number  of  Federal 
decisions  releasing,  by  way  of  habeas  corpus,  a  soldier 
from  the  custody  of  a  State  court  for  an  offense  com- 
mitted within  a  Federal  reservation,  or  in  connection 
with  a  Federal  prisoner.^"^  These  cases,  however, 
dealt  with  a  conflict  of  jurisdiction,  not  between 
military  and  civil  courts,  but  between  two  kinds  of  civil 
courts. 

And,  finally,  the  case  of  Grafton  v.  U.  S.^^  clears  up 
the  only  doubt  which  the  Supreme  Court,  rather  wil- 
fully, had  left  open  in  Ex  parte  Mason. ^^  There  was 
never  a  doubt  that  an  acquittal  by  a  civil  court  could 
be  pleaded  in  bar  to  a  subsequent  proceeding  by  courts 
martial,  and  the  reverse  o^f  the  proposition,  logically, 
should  have  been  just  as  clear.  But  it  required  the 
Grafton  case  to  make  it  clear.  The  appellant,  a  soldier 
of  our  army,  while  on  sentry  duty,  shot  a  Filipino.  The 
civil  court  not  acting  promptly,  Grafton  was  tried  by 
court  martial  on  a  charge  of  homicide,  but  not  murder, 
because,  it  being  in  time  of  peace,  the  court  martial 
could  not  try  him  for  murder.  He  was  acquitted. 
Thereafter  the  local  civil  court  put  him  on  trial  for 
murder,  to  which  he  pleaded  his  previous  acquittal  in 
the  court  martial.  This  plea  was  held  bad,  and  there- 
upon Grafton  was  tried  on  the  general  issue  and  con- 
victed.   On  appeal,  the  Supreme  Court  held  the  plea 

"  See  enumeration  of  these  statutes  in  Franklin  v.  U.  S.  {supra). 
M  See  U.  S.  V.  Lewis.  200  U.  S.  i,  26  Sup.  Ct.  Rep.  229;  U.  S.  v.  Clarke 
31  Fed.  710;  In  re  Fair,  100  Fed.  149;  U.  S.  v.  Lipsett,  156  Fed.  65. 
w  Grafton  v.  U.  S.,  206  U.  S.  333.  27  Sup.  Ct.  Rep.  749. 
^  Ex  parte  Mason  (supra). 


62  THE  ARMY  AND  THE  LAW 

good,  and  therefore  reversed  the  judgment  of  convic- 
tion. The  grounds  for  this  decision  were  (i)  "the  prohi- 
bition of  double  jeopardy  is  applicable  to  all  criminal 
prosecutions  in  the  Philippines,"  (2)  as  the  court  martial 
had  jurisdiction  to  try  Grafton,  "its  judgment  will  be 
accorded  the  finality  and  conclusiveness,  as  to  all  the 
issues  involved,  which  attend  the  judgments  of  a  civil 
court  in  a  case  of  which  it  may  legally  take  cognizance," 
and  (3)  the  acquittal  on  a  charge  of  homicide  is  essen- 
tially a  bar  to  a  prosecution  on  a  charge  of  murder,  on 
principles  familiar  to  all  common  law  practitioners. 

Naturally  the  judgment  of  a  court  martial  can  have 
no  higher  value  than  the  judgment  of  a  common  law 
court.  With  this  in  mind  we  can  understand  the  deci- 
sion in  U.  S.  V,  Clark.^^  As  between  the  parties  to  it,  a 
judgment  is  conclusive  as  to  the  matters  litigated,  and, 
even  though  not  pleaded  as  res  judicata,  it  has  also 
probative  force,^^  but  as  between  other  parties  it  has  no 
value,  by  way  either  of  res  judicata  or  evidence.  In 
U.  S.  V.  Clark  ^®  two  soldiers  had  stolen  government 
funds  from  the  custody  of  an  assistant  paymaster,  and 
the  latter,  under  the  statute,  was  liable  absolutely  for 
their  loss  to  the  government.  The  two  thieves  were 
afterwards  convicted  of  the  larceny  by  court  martial, 
largely  on  the  claimant's  testimony.  Then  the  claimant 
filed  in  the  Court  of  Claims,  which  had  jurisdiction  to 
determine  his  liability,  a  petition  for  relief.  It  was  held 
that  the  petition  should  have  been  dismissed  because 
the  claimant  did  not  testify,  and  the  only  evidence  in 

"  U.  S.  V.  Clark,  96  U.  S.  37. 

"  Duden  v.  Malloy,  43  Fed.  407;  Krekeler  v.  Ritter,  62  N.  Y/  372;  Gu- 
gel  V.  Hiscox,  216  N.  Y.  145,  no  N.  E.  499. 
"  Supra. 


ARMY'S  RIGHT  OF  SELF-REGULATION  63 

support  of  his  petition  was  afforded  by  the  record  of  the 
court  martial,  which  involved  parties  different  from  those 
in  the  instant  suit.    Such  evidence  was  incompetent. 

Finally,  it  should  be  mentioned  that  the  care  with 
which  the  common  law  courts  scrutinize  the  boundaries 
of  a  court  martial's  jurisdiction,  has  in  it  nothing  of 
jealousy  or  of  distrust.  A  court  martial  is  composed  of 
our  own  fellow  citizens  actuated  by  the  same  desire  to 
administer  justice  as  impels  to  his  duty  the  judge  of  any 
common  law  court  in  the  land.  The  guilty  need  fear  its 
process  to  no  greater  or  less  degree  than  he  need  fear  the 
vindicatory  power  of  a  common  law  judge.  Nor  need 
the  public  fear  its  favoring  men  of  the  service.  Indeed, 
we  may  find  in  history,  judicial  and  otherwise,  instances 
of  the  guilty  officer  or  soldier  much  preferring  the  civil 
jurisdiction.  We  need  only  mention  the  case  of  Cap- 
tain Oberlin  Carter  from  our  own  records,  and  one 
from  the  records  of  a  country  which,  although  dif- 
ferent in  its  system  of  law  and  language,  has  always 
been  close  to  us — France.  Marshal  Ney,  when  punish- 
ment hung  over  his  head  for  his  undoubted  act  of  trea- 
son in  going  over  to  Napoleon  in  desertion  of  the  sover- 
eign to  whom  he  had  taken  the  oath  of  allegiance,  stated 
that  he  infinitely  preferred  to  be  tried  by  the  Chamber 
of  Peers  rather  than  by  a  court  martial  composed  of  his 
old  comrades.  The  latter,  to  use  his  expression,  un- 
doubtedly would  have  shot  him  "like  a  rabbit,''^^  but 
they  would  have  done  so  only  because  of  his  clear  guilt 
as  it  would  have  appeared  to  them  on  his  trial. ^^ 

*°  Me  fusilleraient  comme  un  lapin.         

*i  Houssaye,  "1815 — La  Seconde  Abdication  et  la  Terreur  Blanche," 
pp.  570-571. 


^trx 


THE  ARMY  IN  ITS  RELATIONS 
WITH  THE  ENEMY 

As  against  the  public  enemy,  using  that  term  to  de- 
note a  sovereign  state  dejure  or  de  facto,  other  than  our 
own  nation,  the  army  may  be  used  only  in  time  of  war. 
So  far  as  the  common  law  is  concerned,  war,  as  to  com- 
mencement, duration  and  termination,  is  a  matter  of 
state.  The  war  commences  when  government  offi- 
cially says  it  has  commenced,  and  it  ends  when  govern- 
ment says  it  has  ceased  to  exist. ^  Nothing  short  of 
State-recognized  belligerency,  therefore,  is  war  in  the 
view  of  our  courts;  strained  relations,  however  pro- 
phetic of  hostilities,  do  not  constitute  flagrancy  of  war.^ 

As  we  have  seen,  the  Constitution  places  with  Con- 
gress the  power  of  declaring  war.  It  follows  that,  al- 
though the  conduct  of  the  war,  once  its  state  is  created 
by  Congressional  action,  is  with  the  President,  yet  the 
latter  has  no  power  to  direct  the  armed  forces  of  this 
country  against  any  nation  with  whom,  for  the  lack  of 
action  by  the  legislative  branch  of  our  government,  we 
are  at  peace. ^ 

But  such  executive  acts,  however  unauthorized,  may 
be  ratified  by  later  Congressional,  action.     "I  am  per- 

^  Thus,  so  far  as  our  courts  were  concerned,  the  Civil  War  terminated 
when  the  President  proclaimed  its  cessation,  as  of  April  2,  1866.  The  Pro- 
tector, 12  Wall.  700;  Lamar  v.  Brown,  92  U.  S.  187. 

2  Janson  v.  Dreifontein  Mines,  1902  A.  C.  484. 

'  Little  V.  Barreme,  2  Cr.  170. 


THE  ARMY  AND  THE  ENEMY         65 

fectly  satisfied,"  says  Story,  J.,  "that  no  subject  can 
commence  hostilities  or  capture  property  of  an  enemy, 
when  the  Sovereign  has  prohibited  it.  But  suppose  he 
did,  I  would  ask  if  the  Sovereign  may  not  ratify  his  pro- 
ceedings, and  thus  by  a  retroactive  operation  give 
validity  to  them?"^  The  Supreme  Court,  in  the  time  of 
our  Civil  War,  repeated  this  proposition  In  the  Prize 
Cases  J*  The  court  there  referred  to  the  fact  that  the 
battles  of  Palo  Alto  and  Resaca  de  la  Palma  had  been 
fought  before  the  passage  of  the  Act  of  Congress  recog- 
nizing a  state  of  war  with  Mexico,  and  said  that  "this 
act  not  only  provided  for  the  future  prosecution  of  the 
war,  but  was  Itself  a  vindication  and  ratification  of  the 
act  of  the  President  in  accepting  the  challenge  without  a 
previous  formal  declaration  of  war  by  Congress."  In 
the  same  way  the  court  refers  to  the  fact  that  in  the 
Civil  War,  Congress,  at  its  first  session  after  the  attack 
on  Fort  Sumter,  enacted  a  law  ratifying  all  intervening 
acts  of  the  executive  authority.  It  follows  that  the  only 
Interest  of  our  courts  In  such  a  matter  Is  in  whether, 
originally  or  by  ratification,  Congress  has  authorized  the 
state  of  war;  If  so,  the  army  may  lawfully  operate 
against  the  enemy. ^  But  as  the  enemy  state  consists  of 
subjects  of  all  grades  and  classes,  as  well  as  a  govern- 
ment and  armed  forces  of  its  own.  It  Is  now  In  order  to 

4  Brown  v.  U.  S.,  8  Cr.  131. 

6  2  Black  635. 

6  The  requirement  of  a  declaration  of  war  prior  to  hostilities,  is  one  of 
those  matters  of  international  law  with  which  common  law  cannot  deal.  As 
a  matter  of  passing  interest  it  may  be  noted  that  this  obligation,  de  rigeur 
in  the  Eighteenth  Century,  but  fallen  into  desuetude  during  the  course  of  the 
Nineteenth,  is  again  of  force,  by  virtue  of  provisions  to  that  effect  contained 
in  the  Second  Hague  Convention.  (See  Bordwell,  Law  of  War,  36  sq.  186, 198). 


66  THE  ARMY  iVND  THE  LAW 

define  more  closely  the  term  enemy,  so  far  as  our  army's 
efforts  in  war  may  be  concerned. 

Within  the  term  enemy  is  included  not  merely  the 
opposing  government,  but  human  beings  as  well.  That 
proposition,  of  course,  conflicts  with  the  Rousseau 
theory  which  has  been  previously  discussed.^  And  it 
must  be  granted  that  the  vogue  which  that  theory  ob- 
tained in  the  Eighteenth  Century  found  small  opposi- 
tion in  the  common  law  doctrines  then  in  force  concern- 
ing trading  with  the  enemy. 

About  the  middle  of  the  Eighteenth  Century  we  find 
Lord  Hardwicke  saying  that  "no  determination  has 
been  made  that  insurance  on  enemy's  ships  during  the 
war  is  unlawful;  it  might  be  going  too  far  to  say  all 
trading  with  the  enemy  is  unlawful."^  So  far  from 
feeling  that  such  contracts  were  against  public  policy, 
it  was  a  distinct  belief  of  Lord  Mansfield  that  trading 
with  the  enemy  should  be  encouraged.  Indeed,  his 
associate,  Buller,  J.,  quotes  the  Lord  Chief  Justice  as 
having  said  "in  many  conversations"  that  "it  was  a  good 
thing  to  promote  insurance  of  enemy  property."^ 

It  was  from  a  very  different  direction  that  the  modem 
view  came.  In  The  Hoop  ^°  Lord  Stowell  held  that  an 
insurance  contract  made  with  an  enemy  is  void,  and  it 
appeared  that  his  predecessor  in  the  admiralty  had 
made  a  similar  though  unreported  decision.  In  other 
words,  the  prize  court,  whose  law  comes  from  "the 
course  of  the  admiralty  and  the  law  of  nations"  "  con- 

7  Supra  Ch.  II. 

8  Henkel  v.  Royal  Ins.  Co.,  i  Ves.  Sr.  317. 
»  Bell  V.  Gilson,  i  B.  &  P.  345- 

10  I  Ch.  Rob.  196. 

"  See  The  Zamora,  1916,  2  A.  C.  77. 


THE  ARMY  AND  THE  ENEMY        67 

sidered  that  such  transactions  were  wholly  inconsistent 
with  any  respectable  system  of  law.  The  common  law 
courts  then  gradually  adopted  the  view  of  the  admir- 
alty, ^^  and  the  court  of  chancery,  presided  over  by 
Lord  Stowell's  brother,  Lord  Eldon,  took  the  same 
view,^^  Lord  Eldon  considering  that  any  such  bargain  is 
"for  a  trade  to  be  carried  on  in  fraud  of  the  laws  of  the 
country."  When,  in  consequence  of  the  Crimean  War, 
the  English  courts  came  to  consider  the  matter  again, 
they  took  it  that  the  doctrine  was  then  clearly  settled, 
the  reason  of  it  being,  as  stated  by  Willes,  J.,  that  "the 
proximate  object  of  war  is  to  curtail  the  enemy's  com- 
merce as  well  as  to  capture  his  property."  ^^  So  today  all 
nations  seem  to  be  governed  by  the  idea  expressed  by 
Lord  Parker:  "The  rule  against  trading  with  the  enemy 
is  the  belligerent's  weapon  of  self-protection  .  .  . 
Though  it  has  been  said  by  high  authority  to  aim  at 
curtailing  the  commercial  resources  of  the  enemy,  it  has, 
according  to  other  and  older  authorities,  the  wider  ob- 
ject of  preventing  unregulated  intercourse  with  the 
enemy  altogether.  Through  the  Royal  License,  which 
validates  such  intercourse  and  such  trade,  they  are 
brought  under  necessary  control.  Without  such  con- 
trol, they  are  forbidden. "^^  These  Royal  Licenses  were 
always  given;  and  in  all  of  the  cases,  beginning  with 
The  Hoopj^^  the  courts  accepted  licensed  trading. 
When  the  present  war  broke  out  the  English  Crown 
issued  two  proclamations  relating  to  trading,  viz.y  No.  I 

"  See  Potts  V.  Bell.  8  T.  R.  548. 

"  Evans  v.  Richardson,  3  Mer.  469. 

"  Exposito  V.  Bowden,  7  E.  &  B.  763. 

"  Daimler  Company  c.  Continental  Tire  Co.,  1916,  2  A.  C.  307. 

"  Supra. 


68  THE  ARMY  AND  THE  LAW 

of  August  5,  1914,  and-  No.  2,  which  was  substituted  for 
the  former,  of  September  9,  1914.  These  were  followed 
by  the  Trading  with  the  Enemy  Act,  1914.^^  Both 
proclamations  recited  that  "it  is  contrary  to  law  for  any 
person  resident,  carrying  on  business,  or  being  in  our 
dominions,  to  trade  or  have  any  commercial  intercourse 
with  any  person  resident,  carrying  on  business,  or  being 
in  the  German  Empire  without  our  permission."  There 
we  have  the  idea  of  royal  license  clearly  stated.  The 
proclamation,  in  the  words  of  Lord  Shaw,  told  the 
public  "that  a  transaction  permitted  under  proclama- 
tion should  not  be  deemed  trading  with  the  enemy,"  ^^ 
and,  as  stated  by  the  English  courts,  the  effect  of  the 
statute  and  the  proclamations  was  to  leave  the  matter 
exactly  as  it  was  at  common  law,  the  only  advantage  of 
the  proclamation  being  that  it  gave  a  universal  license  to 
permit  transactions  instead  of  express  license  in  the  par- 
ticular act.^^  The  only  additional  advantage  in  the  Eng- 
lish Trading  with  the  Enemy  Act  is  that  it  contains  inquis- 
itorial powers  which  have  already  shown  their  value.^° 
On  the  outbreak  of  our  Civil  War,  the  United  States 
Congress  convened  in  extra  session  on  July  4,  1861,  and 
as  Mr.  Justice  Nelson  says,^^  one  of  its  first  acts  was 

17  4  and  5  Geo.  V.,  c.  87. 

18  Daimler  Company  v.  Continental  Tire  Co.  {supra). 
i»  Robson  V.  Premier  Oil  Co.,  1915,  2  Ch.  124. 

20  Lord  Reading,  C.  J.:  "I  might  add  that  under  the  Trading  with  the 
Enemy  Act,  19 14,  and  the  power  given  thereby  to  send  an  inspector  at  the 
instance  of  the  Board  of  Trade  into  the  office  of  the  firm  and  inspect  the 
books,  an  inspector  was  sent,  and  there  was  an  examination  of  the  documents 
of  the  firm,  and  in  consequence  information  obtained  on  which  no  doubt  the 
prosecution  was  launched.  The  Act  was  passed  with  the  object  of  obtaining 
information  which  could  not  be  obtained  otherwise,  and  which  could  be  used 
as  evidence  against  the  person  from  whom  the  information  had  been  ob- 
tained."   Rex  V.  Kupfer,  1915,  2  K.  B.  321. 

21  Prize  Cases,  2  Black  635. 


THE  ARMY  AND  THE  ENEMY        69 

that  of  July  13,  1861.^2  This  statute  provided  that  the 
President  might  declare  a  state  of  insurrection  existing 
in  certain  territory  whose  extent  his  proclamation 
should  define,  and  that  thereupon  all  commercial  inter- 
course with  the  people  of  the  hostile  section  should  be 
unlawful  as  long  as  hostilities  should  continue ;  but  that 
the  President  might  license  commercial  intercourse  with 
any  part  of  that  section,  and  that  such  intercourse 
should  be  conducted  pursuant  to  regulations  pre- 
scribed by  the  Treasury.  This  statute  the  courts 
strictly  applied.  No  one  but  the  President  could  grant 
a  license;  hence  "those  given  by  military  authorities 
were  nullities.  They  conferred  no  rights  whatever. 
No  one  could  give  them  but  the  President.  From  any 
other  source  they  were  void."^^  But  while  no  govern- 
mental department  other  than  the  Treasury,  could  issue 
these  licenses,  the  Treasury  in  the  sphere  of  action  thus 
allotted  it,  was  supreme.  The  Treasury  used  its  power, 
as  might  have  been  expected,  largely  for  the  purposes  of 
national  revenue,  and  the  courts  upheld  it  in  this 
course.-"^  In  Hamilton  v,  Dillin  ^^  regulations  prescribed 
by  the  Treasury  were  upheld,  as  to  trading  in  cotton, 
even  though  they  required  the  concessionaire  to  pay  the 
government  four  cents  per  pound  on  each  bale  he  might 
purchase. 

Similar  permits  were  issued  by  the  President  during 
the  Mexican  War.^^    And  in  our  present  conflict,  as  in 

22  12  Stat.  125.  ■ 

23  The  Ouachita  Cotton,  6  Wall.  521;    McKee  v.  U.  S.,  8  Wall.  163;    The 
Sea  Lion,  5  Wall.  630. 

24  The  Reform,  3  Wall.  617. 
28  21  Wall.  73. 

26  See,  for  an  example  of  such  a  license,  Mitchell  v.  Harmony,  13  How. 
115,  discussed  infra. 


70  THE  ARMY  AND  THE  LAW 

the  Civil  War,  Congress  has  expressly  authorized  the 
President  to  Hcense  such  trading  as  he  may  approve. ^^ 
In  short,  to  use  the  Supreme  Court's  language,  "if  such 
a  course  of  dealing  is  to  be  permitted  at  all,  it  must 
necessarily  be  upon  such  conditions  as  the  government 
chooses  to  prescribe.  The  war  power  vested  in  the 
government  implies  all  this  without  any  specific  men- 
tion of  it  in  the  constitution."  ^^  Even  in  the  absence  of 
Congressional  action,  however,  there  would  seem  to  be 
little  doubt  that  the  President,  "who  is  constitutionally 
invested  with  the  entire  charge  of  hostile  operations" 
could  grant  such  licenses  ^^  despite  the  fact  that,  in  the 
words  of  Lord  Stowell,^^  any  such  license  effects  "a 
partial  suspension  of  the  war." 

The  holder  of  such  a  permit  marches  within  the  pro- 
tection of  the  common  law,  and  for  seizure  of  his  goods 
a  military  commander  is  liable  in  trespass;  whereas  the 
absence  of  such  a  permit  places  the  trader,  as  to  so 
much  of  his  goods  as  may  be  in  enemy  country,  in  the 
position  of  an  owner  of  enemy  goods,  and  he  cannot  sue 
the  commander  who  destroys  them.  That  is  the  very 
distinction  between  such  a  case  as  Mitchell  v.  Har- 
mony ^^  and  Dow  v.  Johnson.^^  fhe  f^j-gt;  case  we  will 
hereafter  discuss.'^  In  Dow  v.  Johnson,  the  plaintiflF, 
loyal  to  the  North,  owned  a  plantation  in  Louisiana, 
which  the  defendant,  the  military  commanding  officer, 
stripped.    For  that  act,  afterwards,  the  plaintiff  sued 

^  Trading  with  the  Enemy  Act,  October  6,  191 7. 

28  Hamilton  v.  Dillin,  21  Wall.  73. 

2»  Hamilton  v.  Dillin  (supra), 

»»  The  Hoop,  I  Rob.  199. 

'^  13  How.  115. 

"  100  U.  S.  158. 

••  Infra,  Ch.  VIII. 


THE  ARMY  AND  THE  ENEMY        71 

him.  In  holding  for  the  defendant  the  Court  said: 
*We  do  not  controvert  the  doctrine  of  Mitchell  v. 
Harmony;  on  the  contrary,  we  approve  of  it.  But 
it  has  no  application  to  the  case  at  bar.  The  trading  for 
which  the  seizure  was  there  made  had  been  permitted 
by  the  Executive  Department  of  our  Government.  The 
question  here  is,  what  is  the  law  which  governs  an  army 
invading  an  enemy's  country  ?"  ^^ 

The  evolution  of  doctrine  and  practice  thus  outlined 
reflects  the  entire  viewpoint  of  present  day  common 
law.  However  irresponsible  the  enemy  government 
may  be,  whether  or  no  it  rules  its  people  like  an  old- 
time  despot,  or  constitutes  that  most  curious,  and  to  the 
Anglo-Saxon  or  Gallic  intellect,  almost  incomprehensi- 
ble thing,  socialistic  despotism,  still  no  nation,  on  going 
to  war  with  such  a  government,  can  get  far  with  the 
theory  that  the  war  is  only  waged  against  that  govern- 
ment. From  the  lawyer's  standpoint,  as  well  as  that  of 
the  soldier,  war,  of  necessity,  is  waged  against  the  indi- 
viduals and  assets  whose  labor  or  productivity  enables 
the  enemy  government  to  maintain  its  existence.  Such 
a  clear  proposition  must  not  be  confused  with  the  pro- 
gramme, which  formed  a  basis  for  the  wars  of  Allied 
Europe  against  Napoleonic  France,  that  a  change 
of  government  will  be  a  signal  for  peace.  That  is  quite 
another  thing  from  saying,  as  all  lawyers  must  say,  that, 
so  long  as  a  state  of  war  does  exist,  it  is  waged,  not 
merely  against  a  government,  but  against  people.  Our 
present  war,  therefore,  is  waged  not  merely  against  the 
German  Emperor  and  his  sons,  but  against  many  mil- 
lions of  other  Germans  of  more  or  less  varying  likeness. 

»*  Dow  V.  Johnson,  100  U.  S.  158. 


72  THE  ARMY  AND  THE  LAW 

And  so  with  all  other  wars;  wherefore  the  necessity  of 
defining  the  term  enemy  in  more  than  words  of  govern- 
ment. 

Obviously,  the  first  classification  must  rest  upon  citi- 
zenship, as  defined  by  the  laws  of  the  respective  coun- 
tries, and  recognized  by  international  law.  A  German 
citizen,  as  such,  is  ex  vi  termini  an  enemy,  wherever  he 
may  be,  at  home,  abroad,  or  here.  The  tie  of  allegiance 
to  the  hostile  government  is  what  fixes  his  status,  and 
therefore,  the  location  of  either  his  domicile  or  his 
property  is  wholly  immaterial. 
y  In  a  situation  like  that  presented  by  our  Civil  War, 
the  question  of  allegiance  takes  us  over  a  very  delicate 
surface.  Without  discussing,  on  the  one  hand,  the 
historical  aspects  of  the  subject,  or  its  constitutional 
aspects,  on  the  other,  let  us  note  that  at  an  early  date 
in  the  Civil  War  the  Supreme  Court  attributed  to  the 
Confederacy  all  the  qualities  of  a  de  facto  belligerent;  it 
resulting  that  Southern  ports  could  be  declared  in  a 
state  of  blockade,  and  that  a  neutral  ship  attempting 
to  run  the  blockade  would  be  lawful  prize. ^^  Similar 
necessities,  such  as  of  upholding  the  principles  of  mili- 
tary government  in  occupied  parts  of  the  South,  led  the 
United  States  Government,  as  recognized  by  the  Su- 
preme Court,  to  take  a  certain  well-defined  position: 
First.  The  war,  "though  not  between  independent 
nations,  but  between  different  portions  of  the  same 
nation,  was  accompanied  by  the  general  incidents  of  an 
international  war."^^  In  short,  it  took  "the  proportions 
of  a  territorial  war,  the  insurgents  having  become  for- 

35  Prize  Cases,  2  Black  635. 

36  Dow  V.  Johnson,  100  U.  S.  158. 


THE  ARMY  AND  THE  ENEMY  73 

midable  enough  to  be  recognized  as  belligerents;"'^ 
Second.  The  Confederate  government,  though  entitled 
to  no  recognition  as  to  legislative  powers,  was  at  least 
recognized  as  "the  military  representative  of  the  Con- 
federacy," and  the  Confederate  armies  had  belligerent 
rights  as  to  organization,  officers  and  men;^^  Third, 
Therefore  "the  people  of  the  loyal  States  on  the  one 
hand,  and  the  people  of  the  Confederate  States,  on  the 
other,  thus  became  enemies  to  each  other,  and  were 
liable  to  be  dealt  with  as  such  without  reference  to 
their  individual  opinions  or  dispositions."'^  There  was 
only  this  difference,  that  no  one  residing  in  the  North 
could  claim  allegiance  to  the  Confederacy.  His  alle- 
giance was  only  to  the  United  States  government,  and 
no  hostile  act  of  his  could  be  considered  as  less  than 
treason. 

For  persons  thus  owing  allegiance  to  the  enemy  gov- 
ernment, there  is  but  one  line  of  classification,  but 
it  is  of  vital  importance  to  those  who  serve  in  our 
forces.  This  line  divides  them  into  belligerents  on  the 
one  hand,  and  non-combatants,  or  civilians,  on  the 
other.  The  belligerent  may  belong  to  the  land  or  sea 
forces,  but,  for  the  purposes  of  our  discussion,  we  may 
call  him  the  soldier,  and  the  other  class  may  be  called 
civilians.  Each  of  these  classes  has  certain  rights,  and 
to  the  members  of  each  our  forces  owe  certain  duties. 

The  belligerent  class  may  be  dismissed  with  a  word. 
The  soldier  is  entitled  to  the  rights  and  obligations  that 
the  common  laws  of  war  allow  him.    The  civilian,  on  the 

"  Coleman  v.  Tenn.,  97  U.  S.  509. 
'8  Ford  V.  Surget,  97  U.  S.  594. 
^  Dow  V.  Johnson  {supra). 


74  THE  ARMY  AND  THE  LAW 

other  hand,  rests  under  an  entirely  different  set  of  rules, 
as  to  his  person  and  property,  of  which  more  will  be 
said  later.  One  observation,  however,  may  properly  be 
made  at  this  juncture:  the  civilian  deprives  himself  of 
all  the  rights  allowed  him  by  military  law  if  he  abuses 
his  status.  The  enemy  citizen,  in  short,  must  choose 
between  the  status  of  soldier  and  that  of  civilian.  An 
attempt  to  exercise  the  powers  of  the  soldier,  without 
previously  assuming  the  corresponding  status,  is  a  viola- 
tion of  a  long-standing  rule  of  law — a  rule  of  which  we 
find  frequent  manifestations  in  the  wars  of  the  nine- 
teenth century.^°  The  severities  practised  by  the 
Germans  in  1870,  for  violations  of  this  rule  by  French 
civilians,  are  notorious  enough.  But  the  Germans  were 
correct  in  their  propositions  of  law;  the  only  trouble 
with  them  was  that  then,  as  again  in  19 14,  they  showed 
themselves  unfit  ministers  of  justice.  Under  color  of 
law  they  exhibited  a  spirit  of  cruelty  incompatible  with 
all  theories  of  sanction.  But  the  laws  of  war  remain 
of  force,  however  unworthy  may  be  those  who  for  the 
time  being  have  the  power  of  administering  them ;  and 
no  rule  of  this  system  is  better  established  than  the  one 
under  mention.  When  Wellington,  with  an  auxiliary 
Spanish  army  moving  with  him,  crossed  the  Bidassoa  in 
1 8 13,  and  stood  upon  the  invaded  soil  of  France,  he  had 
to  meet  two  difficulties ;  the  Spanish  army  took  to  plun- 
dering, and  this  excited  the  French  peasantry  to  acts  of 
hostility.  Wellington  was  equally  firm  on  both  points. 
The  Spanish  commanders  he  admonished  that  plunder- 
ing must  cease,  or  their  forces  could  no  longer  march 

*"  As  to  the  distinction  between  the  lawfulness  of  the  levee  en  masse,  and 
the  illegality  of  acts  of  the  franc  tireur  or  "bushwhacker,"  see  Birkhimer,  Mili- 
tary Government  and  Martial  Law,  p.  125  et  seq. 


THE  ARMY  AND  THE  ENEMY        75 

with  him.  'Tie  had  not  lost  thousands  of  men  to  enable 
the  Spaniards  to  pillage  and  ill-treat  the  French  peasan- 
try ;  he  preferred  a  small  army  obedient  to  a  large  army 
disobedient  and  undisciplined.  .  .  The  question  be- 
tween them  was  whether  they  should  or  should  not  pil- 
lage the  French  peasants.  His  measures  were  taken  to 
prevent  it,"  etc.^^  On  the  other  hand,  when  the  Spanish 
plundering  had  made  the  peasants  rise  in  arms,  Well- 
ington issued  a  proclamation  requiring  them  either  to 
join  Soult's  army  or  stay  at  home,  otherwise  he  would 
burn  villages  and  hang  the  inhabitants.  "Thus,"  says 
Napier,  "notwithstanding  the  outcries  against  the 
French  for  this  system  of  repressing  the  partida  warfare 
in  Spain,  it  was  considered  by  the  English  general  justi- 
fiable and  necessary."  ^^ 

The  whole  subject  finds  excellent  presentation  in  the 
remarks  of  the  historian  Ropes,  concerning  one  of 
several  orders  issued  by  General  Pope,  when  he  took 
command  of  the  forces  in  Virginia.  Mr.  Ropes*  com- 
ment on  it  is  of  the  greatest  value : 

Another  order  provides  that  non-combatants  in  the  rear 
of  the  army  shall  be  responsible  in  damages  for  injuries  done 
to  the  track  of  railroads,  attacks  on  trains,  assaults  on 
soldiers,  committed  by  Guerillas — that  is,  by  individuals  not 
enlisted  among  the  organized  military  forces  of  the  enemy. 
Any  injuries  to  tracks,  etc.,  are  to  be  repaired  by  the  neigh- 
bors, or  an  indemnity  paid ;  so,  where  soldiers  are  fired  on 
from  a  house,  the  house  shall  be  razed  to  the  ground,  and  the 
occupants  of  it  treated  as  prisoners.  Harsh  as  these 
measures  may  seem  to  those  who  believe  themselves  to  be 
defending  their  homes  from  an  invader,  it  is  certain  that 

<^  Napier,  Peninsular  War,  Book  23,  c.  3. 
*2  Napier,  id. 


76  THE  ARMY  AND  THE  LAW 

they  are  clearly  warranted  by  the  laws  of  civilized  warfare. 
The  only  safety  for  the  non-combatant  population  of  an  in- 
vaded country  consists  in  the  rule  by  which  they  are  for- 
bidden acts  of  private  hostilities.^^ 

The  only  substantial  subject  of  controversy  in  this 
connection  involves  a  detail  in  the  application  of  the 
doctrine.  To  enable  our  army  to  distinguish  between 
the  enemy  civilian  and  the  enemy  soldier,  what  must 
the  enemy  of  either  class  do?  The  Prussians  in  1870 
required  every  enemy  combatant  not  merely  to  have 
evidence  of  his  enrolment  in  a  military  force  organized 
by  the  French  government,  but  also  to  wear  a  distinc- 
tive uniform  or  mark  of  dress.  The  first  requirement 
goes  to  the  essence,  but  the  second  is,  in  the  opinion  not 
merely  of  a  theorist  like  Bluntschli  ^^  but  of  practical 
soldiers  with  knowledge  of  conditions  that  obtained  in 
our  Civil  War,  wholly  unnecessary,  and  also  impossible 
of  enforcement  short  of  involving  the  murder  of  hon- 
estly enrolled  combatants.^^  Enrolment  in  the  regular 
forces,  and  evidence  of  the  same  should  be  sufficient  for 
practical  purposes. 

The  definition  of  the  enemy  is  not  exhausted  with  the 
test  of  allegiance.  We  must  now  deal  with  another 
enemy  class,  of  equal  importance.  With  its  definition, 
citizenship  plays  no  part,  but  residence,  in  one  case, 
and  situs  of  property,  in  another,  are  determining 
features. 

"In  war,"  says  our  Supreme  Court,  "all  residents  of 
enemy  country  are  enemies.  "^^    And  in  another  case 

*3  Ropes,  The  Army  under  Pope,  lo. 
**  Laws  of  War,  Sect.  6i. 

^  Birkhimer,  op.  cit.,  p.  128  et  seq.    See  also,  Merignhac,  Lois  et  Coutumes 
de  la  Guerre  Sur  Terre,  71  seq. 
46  Lamar  v.  Brown,  92  U.  S.  187. 


THE  ARMY  AND  THE  ENEMY         77 

that  Court  has  declared  that  "it  is  ever  a  presumption 
that  inhabitants  of  an  enemy's  territory  are  enemies, 
even  though  they  are  not  participants  in  the  war, 
though  they  are  subjects  of  neutral  States,  or  even 
subjects  or  citizens  of  the  government  prosecuting  the 
war  against  the  State  within  which  they  reside."  ^^ 
There  can  be  no  question  of  this  proposition,  which, 
originating  many  years  ago  ^^  has  again  been  affirmed 
by  the  English  courts  during  the  course  of  the  present 
war.^^  In  the  same  way  of  taking  facts  of  residence 
rather  than  allegiance,  it  is  clearly  settled  that  the 
nature  of  enemy  soil  is  to  be  determined  not  by  matters 
of  right  or  status  quo  ante,  but  of  physical  possession. 
Any  soil  is  enemy  soil,  no  matter  how  forcible  may  be 

*7  Miller  v.  U.  S.,  11  Wall.  268. 

<8  McConnell  v.  Hector,  3  B.  &  P.  113.  "By  uniting  themselves  to  the 
cause  of  a  foreign  enemy  they  cast  in  their  lot  with  his,  and  they  cannot  be 
permitted  to  claim  exemptions  which  the  subjects  of  the  enemy  do  not  pos- 
sess. Depriving  them  of  their  property  is  a  blow  against  the  hostile  power 
quite  as  efTective,  and  tending  quite  as  directly  to  weaken  the  belligerent 
with  whom  they  act,  as  would  be  confiscating  the  property  of  a  non-com- 
batant resident.  Clearly,  therefore,  those  must  be  considered  as  public  ene- 
mies, and  amenable  to  the  laws  of  war  as  such,  who,  though  subjects  of  a 
state  in  amity  with  the  United  States,  are  in  the  service  of  a  state  at  war  with 
them,  and  this  not  because  they  are  inhabitants  of  such  a  state,  but  because 
of  their  hostile  acts  in  the  war.  Even  under  municipal  law  this  doctrine  is 
recognized.  Thus  in  Vaughan's  Case,  2  Salkeld,  635,  Lord  Holt  laid  down 
the  doctrine,  'If  the  States  (Dutch)  be  in  alliance,  and  the  French  at  war 
with  us,  and  certain  Dutchmen  turn  rebels  to  the  States,  and  fight  under 
the  command  of  the  French  king,  they  are  enemies  to  us,  for  the  French  sub- 
jection makes  them  French  subjects  in  respect  of  all  nations  but  their  own'. 
So,  'if  an  Englishman  assist  the  French  and  fight  against  the  King  of  Spain, 
our  ally,  this  is  an  adherence  to  the  king's  enemies',"  Miller  v.  U.  S.  11  Wall 
268,  311. 

*'  Daimler  Co.  v.  Cent.  Fire  Ins.  Co.,  1916,  2  A.  C.  307,  Porter  v.  Freuden- 
berg,  1915,  I  K.  B.  857.  "Residents  of  the  hostile  country,  in  short,  are  ene- 
mies without  reference  to  their  personal  sentiments  and  dispositions." 
Prize  Cases,  2  Black  635;  Williams  v.  Bruflfy,  96  U.  S.  176;  and  Dewing  v. 
Perdicaries.  96  U.  S.  193,  as  stated  in  Ford  v.  Surget,  97  U.  S.  594. 


78  THE  ARMY  AND  THE  LAW 

the  manner  of  Its  occupation,  or  wrongful  in  its  incep- 
tion, even  though,  prior  to  the  enemy's  invasion,  it 
formed  part  of  our  own  domain.  This  proposition,  sus- 
tained nearly  a  century  ago  by  our  Supreme  Court  ^° 
and,  during  the  present  war  by  the  House  of  Lords  ^^  is 
admirably  shown  by  our  case  of  United  States  v.  Rice.^^ 
In  an  action  on  a  Custom  House  bond,  for  goods  im- 
ported into  Castine,  Maine,  during  its  occupation  by  the 
British  troops,  was  pleaded  duress,  arising  from  these 
facts:  Previously  the  War  of  1812  broke  out,  and  the 
British  troops  captured  Castine,  and  held  it  during  the 
balance  of  the  war.  During  their  occupation,  the 
British  military  authorities  opened  a  custom  house  in 
the  place,  and  appointed  a  collector.  The  goods  in  ques- 
tion were  imported  by  residents  of  Castine,  who,  though 
United  States  citizens,  continued  to  reside  there,  under 
the  British  occupation,  and  they  paid  the  duties  to  the 
British  military  collector.  After  the  treaty  of  peace, 
the  British  evacuated  Castine,  and  the  United  States 
resumed  possession,  whereupon  the  United  States 
collector  seized  the  goods,  and  released  them  only  upon 
the  bond  in  suit  being  given.  The  Supreme  Court  con- 
sidered that  the  bond  was  not  enforceable,  and  conse- 
quently upheld  the  plea  on  demurrer,  saying,  through 
Story,  J.:  . 

By  the  conquest  and  military  occupation  of  Castine,  the 
enemy  acquired  that  firm  possession  which  enabled  him  to 
exercise  the  fullest  rights  of  sovereignty  over  that  place. 
The  sovereignty  of  the  United  States  over  the  territory  was, 

60  Thirty  Hogsheads  of  Sugar,  9  Cr.  191 ;  U.  S.  v.  Rice,  4  Wheat.  246. 
»  The  Gutenfels,  1916,   2  A.  C.  112. 
'2  4  Wheat.  246. 


THE  ARMY  AND  THE  ENEMY        79 

of  course,  suspended,  and  the  laws  of  the  United  States 
could  no  longer  be  rightfully  enforced  there,  or  be  obligatory 
upon  the  inhabitants  who  remained  and  submitted  to  the 
conquerors.  By  the  surrender  the  inhabitants  passed  under 
a  temporary  allegiance  to  the  British  government,  and  were 
bound  by  such  laws,  and  such  only,  as  it  chose  to  recognize 
and  impose.  From  the  nature  of  the  case,  no  other  laws 
could  be  obligatory  upon  them,  for  where  there  is  no  pro- 
tection or  allegiance  or  sovereignty,  there  can  be  no  claim  to 
obedience.  Castine  was,  therefore,  during  this  period,  so  far 
as  respected  our  revenue  laws,  to  be  deemed  a  foreign  port; 
and  goods  imported  into  it  by  the  inhabitants  were  subject 
to  such  duties  only  as  the  British  government  chose  to  re- 
quire. Such  goods  were  in  no  correct  sense  imported  into 
the  United  States.  The  subsequent  evacuation  by  the  en- 
emy, and  resumption  of  authority  by  the  United  States,  did 
not,  and  could  not,  change  the  character  of  the  previous 
transactions. 

But  though  such  be  the  effect  of  occupation,  yet  the 
occupation  is  no  less  an  act  of  force  majeure,  rather  than 
one  of  state.  Whether  or  not  there  was  such  occupa- 
tion, therefore,  is  a  question  of  fact,  not  one  of  state, 
and  hence  the  courts  can  decide  it  like  any  other  ques- 
tion of  fact.^^ 

In  the  same  way  may  property  become  subject  to 
treatment  as  though  it  belonged  to  an  enemy,  entirely 
irrespective  of  either  the  owner's  allegiance  or  his  resi- 
dence. 'Whether  property  be  liable  to  capture  as 
'enemies'  property'  does  not  in  any  manner  depend 
upon  the  personal  allegiance  of  the  owner.  It  is  of  no 
consequence  whatever  whether  it  belongs  to  an  ally  or  a 

"  The  Gerasimo,  11  Moore  P.  C.  loi. 


8o  THE  ARMY  AND  THE  LAW 

citizen.  The  owner,  pro  hac  vice,  is  an  enemy."  ^^  It 
follows  that  "for  the  purpdse  of  capture,  property  found 
in  enemy  territory  is  enemy  property,  without  regard  to 
the  status  of  the  owner."  ^^ 

From  this  flows  the  duty  of  the  loyal  citizen  to  re- 
move his  assets  from  the  hostile  country  as  soon  as  pos- 
sible, and  delay  puts  him  in  the  same  state  as  an  enemy. 
If  such  property,  so  left  in  the  foe's  domain,  should  be 
captured  by  our  forces,  no  right  of  jus  postliminii  can 
require  its  delivery  to  the  original  owner.  Once  im- 
pressed with  the  national  character  of  the  enemy 
nation,  its  subsequent  capture  by  our  forces  does  not 
change  its  status."^  Nor  is  there  any  way  to  avoid 
this  result  by  any  act  of  the  citizen,  for  it  is  equally 
unlawful  for  him,  after  war  has  started,  to  send  a 
vessel  to  the  enemy  country  to  bring  away  his  prop- 
erty." Statutes  alone  can  relieve  such  hardships,  and 
our  own  history  has  furnished  good  examples  of  them. 

In  the  War  of  1812  Congress  gave  a  six  months' 
period  of  grace  within  which  the  President  could  allow 
safe  conducts  for  the  removal  of  property  of  British 
subjects  within  the  United  States.^^    The  Civil  War, 

"  Prize  Cases,  2  Black  635.  "While  he  may  not  have  committed  a  crime 
for  which  he  can  personally  be  punished,  his  offending  property  may  be 
treated  by  the  average  belligerent  as  enemy  property.  He  has  the  legal  right 
to  carry,  to  sell  and  to  buy;  but  the  conquering  belligerent  has  a  corre- 
sponding right  to  capture  and  condemn.  He  enters  into  a  race  of  diligence 
with  his  adversary,  and  takes  the  chances  of  success.  The  rights  of  the  two 
are  in  law  equal.  The  one  may  hold  if  he  can,  and  the  other  seize,"  Young  v. 
U.  S.,  97  U.  S.  39. 

"  Lamar  v.  Brown,  92  U.  S.  187. 

w  The  William  Bagaley,  5  Wall.  377. 

"  The  Rapid,  8  Cr.  154. 

"  Act  July  6,  1812,  c.  129;  see  dissenting  opinion  of  Story,  J.,  in  Brown  v. 
U.  S.,  8  Cr.  no,  148. 


THE  ARMY  AND  THE  ENEMY        8l 

however,  furnished  an  even  better  example  In  the  Aban- 
doned and  Captured  Property  Act  of  March  12,  1863.^^ 
This  statute  required  that  all  property,  captured  or 
found  abandoned  In  the  various  States  composing  the 
Confederacy,  be  turned  over  to  the  Treasury  Depart- 
ment, which  should  sell  the  same  and  hold  the  proceeds 
subject  to  suits  therefor  to  be  prosecuted  in  the  Court 
of  Claims  by  the  true  owners,  such  suits  to  be  brought 
within  two  years  after  the  close  of  the  war.  But  It  was 
provided  that  no  owner  could  maintain  such  a  suit  un- 
less he  had  been  loyal,  and  had  never  given  aid  or  com- 
fort to  the  Confederacy.^^  This  statute  was  open  to  all 
who  were  not  within  the  prohibited  class,  neutrals  as 
well  as  those  loyal  to  the  North.^^  But  the  neutral.  In 
order  to  recover,  must  show  that  his  property,  whose 
proceeds  constituted  the  subject  of  his  suit,  was  not,  of 
itself,  giving  "aid  and  comfort"  to  the  enemy.  A  non- 
resident alien  could  not  very  well  commit  treason,  be- 
cause a  breach  of  allegiance  Is  of  the  essence  of  treason. 
But  if  the  property  had  been  used.  In  aid  of  the  Con- 
federacy's military  or  other  governmental  operations, 
as  in  running  a  blockade,  then  pro  tanto,  Its  owner  had 
been  giving  aid  and  comfort  to  the  Confederacy  and 
could  not  recover.^2  To  the  native  born,  indeed,  a 
Presidential  pardon  operated  as  a  complete  substitute 
for  proof  that  the  claimant  gave  no  aid  or  comfort  to 
the  enemy, ^^  but  the  historic  Christmas  Day  procla- 

60  12  Stat.  820,  821.    Now  found  in  Jud.  Code  191 1,  Sects.  162,  150-152. 
8°  See  a  summary  of  the  statute  in  Mrs.  Alexander's  Cotton,  2  Wall.  404. 
«  U.  S.  V.  O'Keefe,  11  Wall.  178;  Carlisle  v.  U.  S.,  16  Wall.  147. 
«2  Young  V.  U.  S..  97  U.  S.  39. 
M  U.  S.  V.  Padelford,  9  Wall.  531. 


82  THE  ARMY  AND  THE  LAW 

mation  of  amnesty  ^^  was  strictly  a  family  affair,  and 
had  no  application  to  offending  neutrals.^^ 

To  the  enemy  who  comes  to  us  with  arms  in  his 
hands,  or  who,  having  borne  arms,  is  sent  back  to  us  as 
a  prisoner  of  war,  the  common  law  has  no  application. 
Beyond  the  peace  of  the  state  he  completely  is,  being 
subject  only  to  the  laws  of  war.  Breaches  of  those  laws 
are  punishable  by  the  statutory  court  martial  sitting 
under  the  Articles  of  War.  To  that  tribunal  alone  is 
confided,  by  the  custom  of  war,  jurisdiction  over  all 
matters  affecting  the  prisoner  of  war.  The  latter  has 
no  right  even  collaterally  to  review  its  proceedings  in 
the  common  law  courts.  If  he  should  apply  for  a  writ 
of  habeas  corpus,  it  would  be  dismissed  at  the  hearing 
on  the  determination  that  he  is  not  a  citizen  and  is  held 
as  subject  to  martial  law;^^  and,  indeed,  the  judge  to 
whom  he  applies  can  safely  refuse  the  writ  if  he  can 
show,  for  his  own  protection,  that  the  applicant  is 
within  this  outlawed  class.^^ 

A  slightly  different  question  arises  when  the  captured 
enemy  turns  out  to  be  a  traitor  in  arms.  To  which 
jurisdiction  is  it  committed  to  try  him  for  treason,  he 
being  thus  apprehended  in  arms?  When  Perkin  War- 
beck  was  thus  taken,  having  landed  on  English  soil  with 
armed  forces  bent  on  the  dethronement  of  Henry  VII,  it 
was  decided  that  the  court  martial  had  exclusive  juris- 
diction.^^ But  Warbeck  was  an  alien,  and  his  case,  as 
regards  a  disloyal  citizen,  would  not  be  sound  authority; 

M  December  25,  1868,  15  Stat.  711. 

*  Young  V.  U.    .  {supra). 

««  Rex  V.  Vine  Street  Police  Station,  113  L.  T.  971. 

^Case  of  the  Three  Spanish  Sailors  (2  W.  Bl.  1324). 

«8  Vide  7  Co.  Rep.  6  b. 


THE  ARMY  AND  THE  ENEMY        83 

and  on  this  distinction  alone  may  hang,  for  pur- 
poses of  authority,  the  more  or  less  celebrated  case  of 
Wolfe  Tone. 

During  the  Irish  Rebellion  of  1798,  Wolfe  Tone  was 
captured  in  Ireland,  wearing  the  uniform  of  a  French 
officer,  having  indeed  but  recently  been  landed  from  a 
French  warship.  The  prisoner  was  put  on  trial  before  a 
court  martial  in  Dublin,  convicted,  and  sentenced  to 
execution;  but  his  counsel,  the  eloquent  Curran,  ap- 
peared before  the  Irish  King's  Bench,  and  applied  for  a 
writ  of  habeas  corpus  on  the  morning  of  the  day  set  for 
the  execution.  It  was  granted,  and  the  court,  accord- 
ing to  the  reporter,  waited  in  a  state  of  utmost  agitation 
for  its  return.  The  jailor  refused  to  deliver  the  prisoner, 
but  before  the  court  could  put  further  measures  into 
effect,  the  announcement  was  made  that  the  prisoner 
had  committed  suicide.  The  entire  proceeding  was 
ex  parte;  counsel  for  the  army  was  "never  heard,  and 
the  only  "decision"  lay  in  the  action  of  the  court  in 
granting  the  writ  on  application  of  the  prisoner's 
counsel.  ^^ 

The  dramatic  instinct  of  the  editors  of  the  state  trial 
series  bade  them  put  this  ex  parte  application  into 
reports  of  what,  in  the  main,  are  adjudged  cases.  It  is 
no  wonder  that  it  has  been  most  infrequently  cited ;  no 
practising  counsel  would  presume  to  cite,  as  a  precedent 
in  the  law,  any  proceeding  in  which  both  sides  were  not 
heard.  Especially  is  this  so  where  the  ex  parte  applica- 
tion is  for  a  writ  of  habeas  corpus;  the  real  hearing  is 
had,  and  the  decision  rendered,  on  the  return  of  the 
writ.    But,  far  more  remarkable  than  the  fact  that  this 

"  Wolfe  Tone's  Case,  27  How.  St.  Tr.  614. 


84  THE  ARMY  AND  THE  LAW 

case  appears  in  Howard's  State  Trials,  is  the  promin- 
ence that  Professor  Dicey  gives  it,^°  and,  that  too  for  a 
proposition  which  it  does  not  decide.  Professor  Dicey 
considers  this  case  as  holding  that  there  can  be  no  state 
of  martial  law  so  long  as  the  civil  courts  are  open.  If 
the  case  decides  anything,  it  is  not  that  point.  All  it 
decides  is  that  a  traitor  caught  in  the  enemy's  uniform, 
bearing  arms  against  his  country,  is  not,  by  reason  of 
that  fact  alone,  subject  to  the  jurisdiction  of  a  court 
martial;  which  is  quite  a  different  proposition.  It  is, 
therefore,  no  wonder  that  in  none  of  the  later  cases  in- 
volving the  proposition  in  which  Professor  Dicey  is  in- 
terested, such  as  Exp,  Milligan,  Exp.  Marais,  Luther  v. 
Borden  and  Moyer  v.  Peabody,^^  is  Wolfe  Tone's  Case 
even  mentioned,  much  less  discussed.  But  for  the  point 
which  it  did  decide,  it  seems  to  have  received  respect 
even  in  England,  if  we  may  judge  by  the  fact  that 
Sir  Roger  Casement,  who  landed  on  the  Irish  coast 
from  a  German  submarine,  was  given  his  trial  in  a 
common  law  court.  Wolfe  Tone's  Case,  then,  leaves 
us  that  one  point,  that  a  traitor  in  arms  is  still  within 
the  benefits  of  the  common  law  while  the  alien  enemy 
is  not. 

Outside  of  the  question  as  to  jurisdiction  over  armed 
traitors,  the  dealings  between  our  army  and  that  of  the 
enemy  are  wholly  beyond  the  pale  of  the  common  law. 
The  rules  of  warfare,  of  truces,  of  bombardments  and 
the  like,  are  wholly  matters  of  customary  military  law, 
as  modified  by  international  conventions.  Violations 
of  these  rules  constitute  "war  crimes"  punishable  in  our 

'°  Dicey  Law  of  the  Constitution,  8th  ed.,  ch.  8. 
^  All  discussed  infra. 


THE  ARMY  AND  THE  ENEMY  85 

military  courts. ^^  One  of  the  most  famous  instances  in 
our  history,  of  the  exercise  of  this  jurisdiction  is  to  be 
found  in  the  case  of  Major  Andre.  Major  Andre, 
briefly  to  repeat  what  is  with  us  a  twice-told  tale,  was  a 
commissioned  officer  of  the  British  Army  during  our 
Revolutionary  war.  In  plain  clothes,  he  came  within 
our  lines  to  negotiate  with  the  traitorous  Arnold,  com- 
manding our  strong  place  of  West  Point,  for  the 
delivery  of  that  fortress  to  the  British  commander. 
Returning  from  this  mission,  Major  Andr6  was  appre- 
hended near  Tarry  town,  and  delivered  to  General  Wash- 
ington. He  was  brought  to  trial  at  Tappan  before  a 
military  commission  or  "board  of  general  officers,"  com- 
posed of  six  major  generals,  and  eight  brigadiers,  con- 
vened by  order  of  the  commander  in  chief.  He  was 
convicted  of  the  charge  of  espionage  and  sentenced  to 
be  hanged ;  and  the  sentence  was  duly  executed. "^^  Pro- 
test regarding  this  judgment  has  been  confined  to  Eng- 
lish civilians,  as  distinct  from  military  men. 

Obviously  such  matters  are  not  actionable  civilly. 
Civil  litigation  between  enemy  combatants  is  impos- 
sible in  our  courts,  because  the  foreign  alien  enemy  can- 
not sue  one  of  our  citizens.    Nor  could  any  such  suit  be 

"  2  Oppenheim,  International  Law,  2d  ed.,  309  sq.  "He  was  responsible 
for  his  conduct  to  the  laws  of  his  own  government  only  as  enforced  by  the 
commander  of  its  army  in  that  State,  without  whose  consent  he  could  not 
even  go  beyond  its  lines.  Had  he  been  caught  by  the  forces  of  the  enemy, 
after  committing  the  offense,  he  might  have  been  subjected  to  a  summary 
trial  and  punishment  by  order  of  their  commander;  and  there  would  have 
been  no  just  ground  of  complaint,  for  the  marauder  and  the  assassin  are  not 
protected  by  any  usages  of  civilized  warfare.  But  the  courts  of  the  State, 
whose  regular  government  was  superseded,  and  whose  laws  were  tolerated 
from  motives  of  convenience,  were  without  jurisdiction  to  deal  with  him," 
Coleman  v.  Tenn.,  97  U.  S,  509. 

''  2  Chandler's  Criminal  C^s^?,  167. 


86  THE  ARMY  AND  THE  LAW 

brought  after  the  war,  based  on  an  alleged  breach  of  the 
laws  of  war  governing  the  conduct  of  hostilities,  be- 
cause, though  such  acts  may  constitute  harms,  they  cer- 
tainly have  not  that  essential  element  of  the  actionable 
tort,  that  the  plaintiff,  when  injured,  was  in  the  peace  of 
the  State. 

The  dealings  between  our  army  and  the  civilian  in- 
habitants of  occupied  enemy  territory  are  matters  re- 
served for  the  next  chapter.  It  remains  then  to  notice 
the  alien  enemy  who  chooses  to  dwell  within  this 
country. 

With  him,  in  the  first  instance,  the  army  has  nothing 
to  do.  This  sort  of  enemy  occupies,  under  our  law,  a 
most  interesting  position.  At  any  moment  the  Execu- 
tive, acting,  however,  not  through  the  army  but  through 
the  United  States  marshal,  who,  in  the  Federal  juris- 
diction, exercises  functions  similar  to  those  of  the 
sheriff,  may  intern  him,  provided  only  that  he  has  ex- 
ceeded the  age  of  fourteen.  To  this  end  the  President  is 
empowered  by  a  statute  of  over  a  century's  standing.^* 
Any  alien,  not  chargeable  with  actual  hostility  or  other 
crime  against  public  safety,  is  allowed,  for  departure 
and  removal  of  his  assets,  a  time  fixed  by  treaty,  or  if 
no  treaty,  such  reasonable  time  as  the  President  may 
declare  by  proclamation.  After  such  proclamation, 
any  alien  enemy  who  is  at  large,  contrary  to  the 
proclamation  and  a  menace  to  our  peace  and  safety, 
may  be  brought  before  a  Federal  court  or  judge,  who, 
after  hearing,  may  order  his  removal,  his  bond  for  good 
behavior,  or  restraint,  according  to  the  proclamation. 

'*Act  July  6,  1798,  c.  66,  R.  S.,  Sects.  4067-4070;  Comp.  Stat.  1913, 
Sects.  7615-7618.  Supplemented  by  Act  of  April  19,  1918,  relating  to 
registration  of  alien  enemy  women. 


THE  ARMY  AND  THE  ENEMY        87 

Such  orders  are  executed  by  the  marshals.  Having 
this  power  of  internment — a  power  in  whose  exercise 
the  Presidential  decision  is  not  subject  to  judicial  re- 
view, ^^  it  follows  that  the  incidental  power  of  regulating 
the  movements  of  aliens,  etc.,  is  included. 

But  until  internment  occurs  the  resident  civilian 
enemy  remains  in  the  bourne  of  the  common  law.  If  he 
is  here,  say  our  courts,  he  is  here  by  permission,  and 
until  his  permit  is  revoked,  as  to  person  or  property,  he 
rests  in  the  full  protection  of  the  law.  As  to  person,  an 
order  of  internment  will  end  the  matter.  As  to  prop- 
erty, affirmative  action  of  the  legislature  is  necessary 
before  the  common  law  will  sanction  any  adverse  claim 
resting  on  the  question  of  his  status.  Whatever  may 
once  have  been  the  practice  of  the  government  confis- 
cating his  assets  with  the  outbreak  of  war,  giving  him 
back  at  the  conclusion  of  peace  what  might  remain  on 
hand,^^  our  Supreme  Court  has  made  it  clear  that  the 
declaration  of  war  does  not  of  itself  sanction  confisca- 
tion proceedings,  but  that  it  "vests  only  a  right,  the 
assertion  of  which  depends  on  the  will  of  the  sovereign 
power."  ^^  But  the  court  did  not  deny  the  existence  of 
the  right;  on  the  contrary,  the  most  it  would  urge,  as  a 
matter,  really,  of  international  law,  was  "that  tangible 
property  belonging  to  an  enemy  and  found  in  the  coun- 
try at  the  commencement  of  the  war,  ought  not  to  be 
immediately  confiscated."  ^^  And  carefully  did  the  court 
except  questions  of  maritime  prize;    the  property  in 

75  Graber's  Case,  247  Fed.  882.    See  also  Martin  v.  Mott,  12  Wheat.  19. 
7«  See  Antoine  v.  Morehead,  6  Taunt.  238;   Porter  v.  Freudenberg,  1915, 
I  K.  B.  857- 

"  Brown  v.  U.  S.,  8  Cr.  no. 
'*  Brown  v.  U.  S.,  supra. 


88  THE  ARMY  AND  THE  LAW 

question  being  tiniber  on  land,  belonging  to  the  enemy 
alien,  and  in  nowise  a  subject  of  admiralty  or  prize  court 
jurisdiction.  No  difficulties  in  this  connection  can  arise 
during  the  present  war.  The  Trading  with  the  Enemy 
Act  of  October  6,  191 7,  takes  care  of  the  situation  by 
vesting  title  to  the  local  property  of  enemy  aliens  in 
an  official  custodian.  Thus,  so  far  from  confiscating 
enemy  property,  our  government  conserves  it  for  the 
enemy's  benefit;  but  this  temporary  sequestration  is 
also  a  wholesome  measure  for  our  own  protection. 

With  the  enemy  alien  thus  living  in  the  day-to-day 
peace  of  the  State,  the  army  has  nought  to  do.  If  his 
internment  is  desired,  the  marshal  is  the  officer  for  that 
function,  and  at  and  with  his  internment,  the  alien 
enemy's  assets,  so  far  as  they  may  be  located  in  this 
country,  pass  into  the  hands  of  the  custodian  acting 
under  the  Trading  with  the  Enemy  Act.  It  is  only 
when  this  alien  enemy,  while  still  at  large,  lurks  as  a  spy 
near  one  of  our  forts,  reservations,  etc.,  that  he  can  put 
himself  within  the  military  jurisdiction.  Then,  like  any 
other  offender  coming  within  the  description  of  the 
Eighty-second  Article  of  War  of  which  we  have  treated 
in  Chapter  III,  he  is  subject  to  trial  by  a  court  martial 
as  a  spy.  So  far,  and  no  further,  go  the  express  words  of 
the  statute  law.  But  it  is  submitted  that  statute  law  is 
not,  on  this  point,  entirely  exclusive  of  the  laws  of  war 
which  have  force  with  regard  to  the  enemy,  wherever  he 
may  be.  The  statute  covers  one  class  of  acts  of  war, 
which  the  enemy  alien,  residing  among  us,  is  capable  of 
committing;  and  recent  legislation  relating  to  espion- 
age, sabotage  and  sedition,  bring  others  within  the 


THE  ARMY  AND  THE  ENEMY         89 

criminal  jurisdiction  of  the  Federal  Courts.^®  But  if  the 
resident  alien  enemy^s  activities,  in  the  way  of  acts  of 
war,  should  conceivably  take  a  shape  not  fitting  any 
statutory  description,  it  is  believed  that  such  an  offense 
would  be  justiceable  by  a  military  court. ^°  If  the  pres- 
ent Articles  of  War  are  not  broad  enough  to  include 
such  acts  within  the  jurisdiction  of  courts  martial,  no 
constitutional  objection  would  lie  to  appropriate 
legislation  in  that  regard. ^^ 

"  Espionage  Act  of  June  15,  1917,  40  Stat.  217;  Sabotage  Act  of  April  20, 
1918;  Sedition  Act  of  May  21,  1918. 

80  See  opinion  of  Speed,  Attorney  General,  relating  to  the  jurisdiction  of 
the  military  commission  which  tried  the  Lincoln  conspirators,  n  Ops. 
A-G.  297. 

"  See  De  Lacey  v.  U.  S.  249  Fed.  625,  and  authorities  there  cited. 


VI 

MILITARY  OCCUPATION  IN  MATTERS 
OF  GOVERNMENT 

In  the  last  chapter  we  considered  the  position,  at 
common  law,  of  the  enemy  when  within  our  gates,  and 
the  law  with  respect  to  the  alien  enemy  so  placed.  Nec- 
essarily we  were  forced  to  treat  somewhat  of  the  loyal 
citizen's  rights  and  obligations,  as  well  as  those  of  the 
loyal  soldier.  We  now  deal  with  the  enemy  when  met 
abroad,  within  his  own  country.^ 

In  such  a  connection  we  need  consider  only  the  rights 
and  obligations  of  our  army  and  its  commanders.  For 
reasons  we  have  already  examined,  no  civilian  of  ours 
can  have  any  rights  enforceable  within  the  scope  of  our 
common  law.  Our  civilian  cannot  trade  or  correspond 
with  the  enemy  abroad,  and,  if  one  of  our  citizens 
chooses  to  live  in  the  enemy  country,  or  leave  property 
there,  he  is,  quoad  hoc,  an  enemy  himself,  and  in  the 
same  class  with  the  enemy  so  far  as  the  common  law 
view  is  concerned.  The  civilian,  therefore,  as  such,  has 
no  place  in  the  enemy  country,  unless  he  goes  there  with 
a  license  permitting  him  to  trade  with  the  enemy,  as  in 
Mitchell  V,  Harmony.^  Outside  that  limited  class  we 
need  only  consider  the  army,  and  its  entourage  as  pre- 
scribed by  the  Articles  of  War. 

^  For  matters  treated  in  this  and  the  subsequent  chapter,  the  reader  is 
referred  to  Moore's  International  Law  Digest,  Sect.  1143  sq. 
2 13  How.  IIS,  discussad  supra. 


MILITARY  OCCUPATION  AND  GOVERNMENT      91 

All  members  of  this  organization,  as  we  have  already 
seen,  are  subject  to  the  jurisdiction  of  courts  martial, 
administering  the  body  of  military  law,  codified  and 
uncodified,  which  is  applicable  to  the  soldier.  While  the 
army  is  at  home,  as  we  have  seen,  the  criminal  courts 
have  a  certain  concurrent  jurisdiction.  But  the  juris- 
diction of  the  court  martial  becomes  exclusive  the  in- 
stant the  army  leaves  our  national  boundaries.  While 
marching  through  a  friendly  country,  or  stationed  in  it 
our  army  is  to  be  treated  as  absolutely  "exempt  from  the 
civil  or  criminal  jurisdiction  of  the  place. "^  The  con- 
sent of  the  friendly  government  to  such  a  proposition  is 
assumed  as  a  matter  of  course;  indeed,  were  it  to  act 
otherwise,  the  consequences  would  be  grave.'' 

Such  being  the  case  with  a  friendly  ally,  it  follows  a 
fortiori,  as  the  Supreme  Court  says  in  the  case  last 

'  Coleman  v.  Tennessee,  97  U.  S.  509,  The  Exchange,  7  Cr.  139,  Dow  v. 
Johnson,  100  U.  S.  158. 

*  "It  is  well  settled  that  a  foreign  army  permitted  to  march  through  a 
friendly  country,  or  to  be  stationed  in  it,  by  permission  of  its  goverument  or 
sovereign,  is  exempt  from  the  civil  and  criminal  jurisdiction  of  the  place. 
The  sovereign  is  understood,  said  this  court  in  the  celebrated  case  of  The 
Exchange  {supra)  to  cede  a  portion  of  his  territorial  jur^diction  when  he 
allows  the  troops  of  a  foreign  prince  to  pass  through  his  dominions.  In  such 
a  case,  without  any  express  declaration  waiving  jurisdiction  over  the  army  to 
which  this  right  of  passage  has  been  granted,  the  sovereign  who  should  at- 
tempt to  exercise  it  would  certainly  be  considered  as  violating  his  faith.  By 
exercising  it,  the  purpose  for  which  the  free  passage  was  granted  would 
be  defeated,  and  a  portion  of  the  military  forces  of  a  foreign  independent 
nation  would  be  diverted  from-  those  national  objects  and  duties  to  which  it 
was  applicable,  and  would  be  withdrawn  from  the  control  of  the  sovereign 
whose  power  and  whose  safety  might  greatly  depend  on  retaining  the  exclu- 
sive command  and  disposition  of  this  force.  The  grant  of  a  free  passage, 
therefore,  implies  a  waiver  of  all  jurisdiction  over  the  troops  during  their 
passage,  and  permits  the  foreign  general  to  use  that  discipline  and  to  inflict 
those  punishments  which  the  government  of  his  army  may  require."  Cole- 
man V.  Tennessee;  {supra).  The  Act  of  April  18,  1918,  authorizes  the  War  De- 
partment to  audit  and  settle  all  claims,  made  by  inhabitants  of  France  or 
our  other  allies,  for  damages  caused  by  our  troops. 


92  THE  ARMY  AND  THE  LAW 

cited,  that  our  army,  when  within  the  enemy's  country, 
is  wholly  exempt,  in  every  respect,  from  the  jurisdiction 
of  his  courts.  "The  fact  that  war  is  waged  between  two 
countries,"  says  the  Supreme  Court,  "negatives  the 
possibility  of  jurisdiction  being  exercised  by  the  tribu- 
nals of  the  one  country  over  persons  engaged  in  the  mili- 
tary service  of  the  other  for  offenses  committed  while  in 
such  service.  Aside  from  this  want  of  jurisdiction,  there 
would  be  something  incongruous  and  absurd  in  per- 
mitting an  officer  or  soldier  of  an  invading  army  to  be 
tried  by  his  enemy,  whose  country  he  had  invaded."^ 
If,  then,  a  criminal  court  in  the  enemy  country  should, 
during  the  war,  or  after  it,  be  asked  to  countenance  the 
prosecution  of  an  offense  committed  by  a  soldier  of  our 
army  while  the  latter  was  within  the  enemy  country, 
the  common  law  view  of  the  matter  is  that  the  court, 
being  wholly  without  jurisdiction,  should  refuse  to  act. 
That  was  the  decision  in  Coleman  v.  Tennessee.^  The 
appellant,  a  soldier  of  the  United  States  forces,  in  hos- 
tile occupation  of  Tennessee  during  the  Civil  War,  was 
tried  by  court  martial  for  murder,  and  acquitted.  The 
war  ending,  and  Tennessee  being  restored  as  a  State  of 
the  Union,  the  appellant  was  indicted  in  a  court  of  that 
State  for  the  same  murder.  He  pleaded,  in  bar,  his 
former  acquittal  by  the  court  martial.  If  Tennessee  had 
not  been,  at  the  time  of  the  court  martial,  enemy  terri- 
tory, that  plea  should  have  been  sufficient.^  But  the 
Tennessee  court  held  the  plea  bad  even  as  a  plea  of 
autrefois  acquit,  and  the  appellant  was  then  convicted. 

'  Coleman  v.  Tennessee  (supra). 
•  Supra. 

7  Grafton  v.  U.  S.,  206  U.  S.  333.  27  Sup.  Ct.  Rep.  749.  discussed  supra, 
Ch.  IV. 


MILITARY  OCCUPATION  AND  GOVERNMENT      93 

The  Supreme  Court  held  that  the  plea  should  not  have 
been  autre  fois  acquit,  for  that  implied  a  concurrent 
jurisdiction  in  the  Tennessee  court,  whereas  really, 
Tennessee  having  been  then  enemy  country,  its  courts 
had  no  jurisdiction  at  all  of  any  military  offense;  the 
court  martial's  jurisdiction  being  exclusive.  The  court, 
however,  treated  the  plea  as  though  it  had  properly 
stated  this  contention,  and  reversed  the  state  court's 
judgment  accordingly. 

There  is,  however,  in  such  a  state  of  affairs,  one 
tribunal  of  the  enemy  that  can  be  said  to  have  con- 
current jurisdiction.  If  the  culprit's  act  constitutes  a 
"war  crime"  of  the  sort  previously  mentioned,  then, 
should  he  be  taken  prisoner  by  the  enemy's  army,  the 
latter' s  commander  could  put  him  to  trial  before  a  court 
martial  of  the  enemy's  own  choosing.^ 

So  much,  then,  for  criminal  jurisdiction  over  the  sol- 
dier when  in  the  enemy's  country;  it  is  exclusively 
vested  in  the  court  martial.  Criminal  laws  of  the 
enemy  State,  to  continue  with  the  Supreme  Court's 
language,  "are  continued  in  force  only  for  the  protection 
and  benefit  of  its  own  people.  As  respects  them,  the 
same  acts  which  constituted  offenses  before  the  military 
occupation  constitute  offenses  afterwards;  and  the 
same  tribunals,  unless  superseded  by  order  of  the  mili- 
tary commanders,  continue  to  exercise  their  ordinary 
jurisdiction."^ 

As  the  invading  soldier  remains  under  the  exclusive 
jurisdiction  of  the  court  martial  as  to  criminal  offenses, 
the  same  rule,  by  the  very  reason  of  the  thing,  would 

8  Supra,  Ch.  V. 

•  Coleman  v.  Tennessee  (supra). 


94  THE  ARMY  AND  THE  LAW 

apply  to  his  torts  or  even  his  matters  of  contract. 
Clearly  our  soldier  is  not  answerable  civilly  to  a  local 
provisional  court,  because  he  has  not  come  within  the 
sanction  of  the  enemy  nation's  municipal  law.  That 
law  is  "not  for  the  protection  or  control  of  the  army,  or 
its  officers  or  soldiers.  These  remain  subject  to  the 
laws  of  war,  and  are  responsible  for  their  conduct  only 
to  their  own  government,  and  the  tribunals  by  which 
those  laws  are  administered.  If  guilty  of  wanton  cru- 
elty to  persons,  or  of  unnecessary  spoliation  of  property, 
or  of  other  acts  not  authorized  by  the  laws  of  war,  they 
may  be  tried  and  punished  by  the  military  tribunals. 
They  are  amenable  to  no  other  tribunal,  except  that  of 
public  opinion,  which,  it  is  to  be  hoped,  will  always 
brand  with  infamy  all  who  authorize  or  sanction  acts  of 
cruelty  and  oppression." ^° 

In  Dow  V.  Johnson,  from  which  quotation  has  just 
been  made,  the  defendant,  in  command  of  forces  oper- 
ating within  the  occupied  portions  of  Louisiana  during 
the  Civil  War,  seized  for  the  use  of  his  force  certain  sup- 
plies belonging  to  the  plaintiff.  For  this  the  plaintiff 
sued  in  the  provisional  court  in  New  Orleans  (of  which 
more  hereafter),  and  recovered  judgment  by  default. 
After  the  war  the  plaintiff  sued  the  defendant,  on  this 
judgment,  in  the  Federal  court  sitting  in  Maine.  The 
Supreme  Court  held  that  a  plea  of  nul  tiel  record  was 
good  because  the  provisional  court  had  no  jurisdiction. 
The  court  declared  that  "when  our  armies  marched  into 
the  country  which  acknowledged  the  authority  of  the 
Confederate  Government,  that  is,  into  the  enemy's 
country,  their  officers  and  soldiers  were  not  subject  to 

"  Dow  V.  Johnson  {supra). 


MILITARY  OCCUPATION  AND  GOVERNMENT      95 

its  laws,  nor  amenable  to  its  tribunals  for  their  acts. 
They  were  subject  only  to  their  own  government,  and 
only  by  its  laws,  administered  by  its  authority,  could 
they  be  called  to  account." 

Nor,  as  a  general  proposition,  has  any  enemy  a  right 
of  action,  enforceable  in  our  own  courts, ^^  or  in  any 
other  courts  ordinarily  having  jurisdiction. ^^  If  any- 
body could  be  considered  as  liable  for  the  tort,  it  is  the 
United  States  Government,  not  the  military  govern- 
ment of  the  occupied  territory,  ^^  and  for  such  a  tort  no 
petition  will  lie  either  in  the  Court  of  Claims  or,  under 
the  Tucker  Act,  in  the  District  Court. ^^  The  reason  is 
simple.  When  our  army  operates  in  the  enemy  country, 
every  act  is  an  act  of  war,  against  one  not  in  the  peace  of 
our  State.  No  member  of  the  forces  can  conceivably  be 
liable  in  our  courts  for  an  act,  committed  in  the  flagrancy 
of  war,  and  done  to  one  who,  at  the  time  of  the  offense, 
had  no  right  of  action  in  our  courts.  To  say  that,  with 
the  conclusion  of  peace,  the  injured  enemy  may  sue  in  our 
courts,  is  to'  create  an  actionable  tort  ex  post  facto;  and 
that,  too,  as  of  a  time  when  it  would  have  been  against 
public  policy  even  to  have  suggested  that  an  action  lay. 
This  the  common  law  courts  will  not  do.  When  an  act 
is  done  "flagrante,  yet  non  dum  cessante  hello"  to  para- 
phrase the  words  of  Lord  Tenterden,  speaking  for  the 
Privy  Council,  "the  municipal  court  has  no  jurisdiction 

11  Lamar  v.  Brown,  92  U.  S.  187;   Coolidge  v.  Guthrie,  Fed.  Case  3186. 

12  Ford  V.  Surget,  97  U.  S.  594;  Elphinstone  v.  Bedeechrund,  i  Knapp 
P.  C.  316. 

13  Wallace  v.  Alford,  39  Ga.  609;  O'Reilly  v.  Brooke,  209  U.  S.  45,  28 
Sup.  Ct.  Rep.  439- 

14  Ribas  y  Hijo  v.  U.  S.,  194  U.  S.  310;  24  Sup.  Ct.  727;  Herrara  v.  U.  S., 
222  U.  S.  558,  32  Sup.  Ct.  Rep.  179. 


96  THE  ARMY  AND  THE  LAW 

to  adjudge  upon  the  subject,  but  if  anything  was  done 
amiss,  resort  could  only  be  had  to  the  Government  for 
redress."  ^^  Adopting  these  words,  our  Supreme  Court 
describes  the  United  States  Government  as  the  only 
source  to  which  the  plaintiff  can  look  for  redress,  for 
violation  of  the  laws  of  war;  and  that  as  a  matter  of 
grace,  not  right.  In  Lamar  v.  Brown  ^^  the  plaintiff, 
after  the  close  of  the  Civil  War,  sued  the  defendant  in 
the  Federal  Court,  sitting  in  Massachusetts,  for  the 
conversion  of  cotton.  The  defendant  showed  that  he, 
as  a  government  agent,  seized  this  cotton  in  a  Southern 
State  under  military  occupation,  under  color  of  the 
Captured  and  Abandoned  Property  Act.  The  Supreme 
Court  held  this  defense  sufficient,  because  (a)  being 
found  in  enemy  territory,  the  cotton  was  enemy  prop- 
erty, for  reasons  heretofore  discussed,  and  (h)  the  cotton 
was  a  legitimate  subject  of  capture,  for  reasons  here- 
after assigned.  In  Ford  v,  Surget  ^^  the  same  beneficent 
rule  was  applied  in  behalf  of  a  Confederate  officer  who 
had  burned  cotton  belonging  to  the  plaintiff,  the  latter 
being  a  resident  of,  and  a  sympathizer  with,  the  Con- 
federacy. The  destruction  of  the  cotton,  said  the  Court, 
"under  the  orders  of  the  Confederate  military  authori- 
ties, for  the  purpose  of  preventing  it  from  falling  into 
the  hands  of  the  Federal  army,  was,  under  the  circum- 
stances alleged  in  the  special  pleas,  an  act  of  war  upon 
the  part  of  the  military  forces  of  the  rebellion,  for  which 
the  person  executing  such  orders  was  relieved  from  civil 
responsibility  at  the  suit  of  the  owner  voluntarily  resid- 

»'  Elphinstone  v.  Bedeechrund  {supra). 
»« Supra. 
"  Supra. 


MILITARY  OCCUPATION  AND  GOVERNMENT      97 

ing  at  the  time  within  the  Hnes  of  the  insurrection." 
And  in  Elphinstone  v,  Bedeechrund  ^^  the  plaintiff's 
property  had  been  seized  under  the  defendant's  order; 
the  defendant  mistakenly  supposing  it  to  be  the 
property  of  the  hostile  sovereign  or  public  moneys.  No 
active  hostilities  were  then  being  carried  on  in  the  im- 
mediate neighborhood  of  the  seizure,  though  the  war 
was  not  at  an  end.  The  Privy  Council  held  that  this 
was  an  act  of  war,  within  the  protection  of  the  rule  we 
have  mentioned,  and  that  the  defendant  was  not  liable. 

It  is  different  in  the  case  of  controversies  between 
enemy  subjects.  They  are  not  bound  to  resort  to  the 
military  courts  of  the  conqueror;  ^n  the  contrary, 
their  original  courts  usually  remain  open  for  all  ordinary 
civil  business,  and,  within  limits  of  the  nature  above  and 
hereafter  outlined,  for  criminal  business  as  well.  But 
even  this  is  entirely  at  the  will  of  the  commander.  What 
does  that  mean? 

Military  government,  of  which  we  are  now  to  speak, 
is  a  thing  familiar  to  our  courts.  In  the  Mexican  War, 
not  merely  were  parts  of  Mexico  occupied  by  our  forces, 
but  the  territory  afterwards  ceded  to  us  was  first  subject 
to  our  armed  occupation.  From  a  strategic  point  of 
view  the  history  of  our  Civil  War  was  one  of  slow  con- 
striction of  the  South ;  from  a  legal  point  of  view  it  was 
a  broadening  drama  of  military  occupation,  successive 
governments  being  established  as  the  Confederacy  gave 
ground.  The  Confederates,  on  the  other  hand,  established 
but  one  military  government,  in  Arizona, ^^  Lee's  occupa- 
tion of  southern  Pennsylvania  producing  no  such  result. 

18  Supra. 

"  Birkhimer,  Militsiry  Government  and  Martial  Law,  p.  93. 


98  THE  ARMY  AND  THE  LAW 

Military  occupation  means,  in  this  connection,  sev- 
eral things. 

First:  The  very  fact  of  the  occupation  severs  the 
poHtical  relation  between  the  people  of  the  hostile  coun- 
try and  the  former  sovereign, ^^  and  the  inhabitants  owe 
the  commander  the  duty  of  obeying  his  regulations  and 
none  other.  This,  however,  does  not  effect  a  change  of 
allegiance.  The  commander  has  no  right  to  require  the 
inhabitants  to  take  an  oath  of  allegiance ;  at  best  he  can 
only  ask  for  an  oath  of  obedience  to  his  orders.  That 
was  the  mistake  made  by  General  Pope  in  the  Civil  War, 
when  he  included,  among  his  famous  orders,  a  require- 
ment that  all  inhabitants  of  the  occupied  districts  must 
either  take  an  oath  of  allegiance  or  depart  to  the  enemy 
lines.  The  trouble  with  such  an  order  was  that  it  con- 
founded military  occupation  with  annexation.^! 

20  Coleman  v.  Tennessee  {supra);  Dow  v.  Johnson  {supra). 

"  "There  was  still  another  order  .  .  .  This  provided  that  the  oath  of 
allegiance  should  be  tendered  to  all  male  citizens  in  the  lines  of  the  army; 
that  those  who,  after  having  taken  it,  violated  it,  should  be  shot,  and  that 
those  who  refused  to  take  it  should  be  sent  beyond  the  lines  of  the 
army,  with  the  threat  of  being  treated  as  spies  if  they  returned  to  their 
homes.  For  this  order,  it  must  be  conceded,  there  is  absolutely  no  justifica- 
tion. A  commander  in  the  field  has  nothing  to  do  with  allegiance,  or  oaths  of 
allegiance,  in  his  treatment  of  the  enemy.  He  can  only  apply  to  them  the 
well-recognized  laws  of  war  as  explained  above,  namely,  that  all  combatants 
belonging  to  the  organized  forces  of  the  enemy  shall  be  treated  as  prisoners 
of  war,  and  shall  be  entitled  to  the  immunities  and  respect  shown  to  prisoners 
of  war,  and  that  all  private  warfare  shall  be  repressed  by  the  use  of  as  much 
severity  as  may  be  found  necessary  to  suppress  it — but  that  is  all.  No  one 
ever  heard  of  the  Germans  tendering  to  the  French  villagers  the  oath  of 
allegiance  to  the  king  of  Prussia;  and  the  only  controversy  on  this  subject  of 
any  consequence,  in  the  late  Franco-Prussian  war,  was  caused  by  the  doubt 
whether  the  francs-tireurs  were,  or  were  not,  such  a  part  of  the  organized 
military  forces  of  France  as  to  be  entitled  to  the  treatment,  when  captured,  of 
prisoners  of  war.  General  Pope's  authority  on  this  subject  was  not  en- 
larged in  the  slightest  degree  by  the  opinion  which  he  entertained,  or  which 
his  government  entertained,  that  the  enemy  with  whom  he  was  fighting  was 
in  rebellion  against  the  United  States.    He  was  not  there  as  a  United  States 


MILITARY  OCCUPATION  AND  GOVERNMENT      99 

Never  should  that  mistake  be  made.  A  country 
remains  foreign  soil  to  us,  although  completely  within 
our  military  control.  To  make  that  soil  ours,  within 
the  purview  of  our  constitution  and  laws,  it  must  be 
ceded  to  us;  nought  else  will  suffice.  Cuba,  though 
completely  under  our  military  control,  was  never  a 
part  of  our  domain,^-  and  Porto  Rico,  only  when  ceded  to 
us,  ceased  to  be  a  foreign  country.^^ 

Nevertheless,  the  enemy  subject  does  owe  the  duty 
of  obedience  above  mentioned.  The  rationale  of  this 
duty  may  be  the  subject  of  dispute;  but  that  the  com- 
mander has  the  right  to  enforce  such  obedience  cannot 
be  denied. 2^  "The  right  to  govern  the  territory  of  the 
enemy  during  its  military  occupation  is  one  of  the 
incidents  of  w^ar,  being  a  consequence  of  its  acquisition," 
says  our  Supreme  Court,^^  and  the  English  authorities 
are  to  the  same  effect. ^^ 

marshal,  acting  under  the  orders  of  a  court,  and  arresting  persons  against 
whom  a  grand  jury  had  found  indictments  for  treason;  but  he  was  there  as 
an  officer  of  the  army  in  the  field,  against  an  enemy  in  arms  and  entitled  to  be 
treated  in  all  respects  as  a  foreign  foe."  Ropes,  The  Army  Under  Pope,  pp. 
9-1 1.  See  also  Spaight,  War  Rights  on  Land,  p.  332.  See  also,  as  to  one  of 
General  Hunter's  proclamations,  which  President  Lincoln  rescinded.  Burgess, 
The  Civil  War  and  the  Constitution,  Vol.  2,  pp.  82-83. 

22  Neely  v.  Henckel,  180  U.  S.  120,  21  Sup.  Ct.  Rep.  302. 

23  De  Lima  v.  Bidwell,  182  U.  S.  194;  21  Sup.  Ct.  Rep.  743.  In  Fleming  v. 
Page,  9  How.  603,  is  a  dictum  that  mere  conquest  gives  title.  If  Cross  v. 
Harrison,  16  How.  164,  did  not  overrule  this  dictum,  as  the  court  later  said  it 
did,  De  Lima  z/.  Bidwell,  supra,  the  case  of  De  Lima  v.  Bidwell  certainly  had 
that  effect. 

2<  See  Bordwell,  Laws  of  War,  300;  Oppenheim,  Legal  Relation  between 
Occupying  Power  and  Inhabitants,  33  Law  Quarterly  Review  363.  Discussion 
of  the  nature  of  this  "war  allegiance"  and  the  resulting  crime  of  "war  rebel- 
lion," punishable  by  the  commander,  gets  nowhere,  and  frequently  ends  in 
the  realm  of  nominalism  (See  Birkhimer,  op.  cit.  69).  The  fact  is  that  this 
temporary  allegiance  is  a  part  of  the  laws  of  war,  and  breaches  of  it  are, 
therefore,  punishable  by  the  military  authority. 

2s  Coleman  v.  Tenn.  {supra). 

26  "When  his  Majesty's  forces  are  in  armed  occupation  of  hostile  territory. 


lOO  THE  ARMY  AND  THE  LAW 

Second:  The  Executive,  as  Commander-in-Chief,  can 
form  a  temporary  civil  government  for  the  occupied  ter- 
ritory, to  operate  under  the  direction  of  the  miHtary 
commander.  To  support  such  a  government  taxes, can 
be  collected  from  the  inhabitants,  and  tariff  duties  im- 
posed upon  imports.  All  such  directions  are  valid  until 
Congress  sees  fit  to  supersede  them ;  wherefore  one  who 
has  paid  taxes  to  such  a  government,  although  under 
protest,  cannot  maintain  an  action  to  recover  them 
back.  Such  was  the  holding  in  Cross  v.  Harrison  ^^ 
as  to  customs  duties  paid  to  the  provisional  government 
of  California,  and  to  the  same  effect  is  Fleming  v.  Page  ^^ 
relating  to  the  provisional  government  of  Tampico. 

With  the  cessation  of  the  military  occupation  this 
government  of  necessity  ends.  Such  interesting  ques- 
tions as  might  otherwise  arise  in  connection  with  out- 
standing contracts  and  obligations  of  the  provisional 
government  are  usually  settled  by  treaty,  when  the  war 
is  between  independent  States.  The  common  law  so  far 
has  not  spoken  on  the  subject,  for  we  do  not  consider 
New  Orleans  v.  Steamship  Co.^^  as  an  actual  pronounce- 
ment. There  the  military  government,  ruling  the  occu- 
pied city  of  New  Orleans,  leased  certain  water  front 
property,  which  belonged  to  the  City,  for  a  ten-year 
term.  A  year  later  the  control  of  the  City  was  handed 
back  to  the  city  authorities.  They  tried  to  repudiate  the 
lease,  but  the  decision  which  the  court  rendered,  up- 

it  is  competent  to  H.  M.'s  commanders  to  declare  that  martial  law  shall  pre- 
vail in  such  territory,  and  to  lay  down  rules  which  they  deem  essential  for  the 
preservation  of  H.  M.'s  forces  and  military  stores,"  9  Halsbury's  Laws  of 
England,  104  citing  opinions  of  Crown  Law  Officers. 

'7  Cross  V.  Harrison,  16  How.  164. 

"  Supra. 

2»  20  Wall.  387. 


MILITARY  OCCUPATION  AND  GOVERNMENT    loi 

holding  the  lease,  is  not  of  much  help.  The  City  un- 
doubtedly could  elect  to  adopt  the  lease,  and  thus  suc- 
ceed to  all  the  former  government  rights  under  the 
contract;  and  its  election  to  do  this  was  shown  in  the 
fact  that  it  had  collected  one  installment  of  rent  prior 
to  its  attempted  repudiation  of  the  lease.  Hunt,  J., 
rests  his  special  concurring  opinion  on  this  ground 
alone;  but  the  majority  opinion,  while  admitting  "the 
general  principle  that  the  contracts  of  the  conqueror 
touching  things  in  conquered  territory  lose  their  efficacy 
when  his  dominion  ceases,"  yet  considered  that  the 
peculiar  necessities  of  the  City  at  the  time  this  lease  was 
made,  gave  implied  authority  to  the  military  government 
to  bind  itself  and  all  future  governments  for  a  period  of 
years.  This  is  especially  hard  to  understand  when  we 
recall  that  the  Supreme  Court  has  placed  itself  clearly 
on  record  as  repudiating  any  doctrine,  of  the  postliminii 
variety,  that  conquest  alone  can  give  title.^° 

Third:  The  military,  as  to  all  controversies  with  civil- 
ians, are  subject  only  to  the  jurisdiction  of  their  own 
court  martial,  as  we  have  seen.  But  it  is  customary  to 
leave  the  courts  of  the  country  in  operation  for  all  civil 
litigation  between  the  inhabitants,  and,  for  their  gov- 
ernance, to  leave  the  municipal  laws  of  the  country  in 
force.  In  fact,  the  commander's  affirmative  action  is  re- 
quired to  change  the  municipal  law;  until  he  acts,  it  is 
presumed  that  he  intends  to  leave  it  of  full  force.^^ 

'°  De  Lima  v.  Bidwell  (supra);  Am.  Ins.  Co.  v.  Canter,  i  Pet.  542.  The 
dictum  in  the  direction  of  the  doctrine  of  conquest,  found  in  Fleming  v. 
Page,  9  How.  603,  must  be  considered  as  overruled.  See  De  Lima  v.  Bidwell 
(supra) . 

'1  Wingfield  v.  Crosby,  5  Cold.  Tenn.  246.  "By  such  occupation  the 
political  relations  between  the  people  of  the  hostile  country  and  their  former 
government  or  sovereign  are  for  the  time  severed ;  but  the  municipal  laws — 


I02  THE  ARMY  AND  THE  LAW 

Sometimes  the  military  authorities  may  set  up,  in  the 
place  of  an  old  local  court,  a  new  and  provisional  court 
with  the  same  jurisdiction.  Such  was  the  course  fol- 
lowed after  the  Federal  forces  completed  their  military 
hold  upon  New  Orleans,  the  greatest  commercial  city  of 
the  Confederacy. 

Such  courts  can  only  exercise  the  jurisdiction  thus 
allowed  them.  The  commander  may  reserve  for  his 
own  jurisdiction,  exercised  through  a  provost  court,  any 
cases  he  may  choose,  and  his  directions  must  be  obeyed. 
Likewise  he  may  determine  to  try  off  enses  savoring  of  war 
treason  before  a  military  commission  of  his  own  selection. 

Neither  a  provost  court,  as  above  mentioned,  nor  a 
court  for  the  trial  of  war  treasons,  is  a  court  martial  in 
the  sense  wherein  we  have  previously  used  that  term; 
because  the  court  martial  which  deals  with  the  crimes  of 
the  soldier  is  statutory,  whereas  courts  of  the  class  now 
under  discussion  derive  no  authority  from  our  statute 
law.  But  these  various  courts  are  all  alike  in  the  re- 
spect, that  the  sentence  of  each  requires  the  confirma- 
tion of  the  appointing  power  before  it  can  be  effective 
as  a  judgment;  the  court,  in  short,  is  an  advisory 
committee,  to  advise  the  commander  as  to  the  facts, 
and  likewise  inform  his  conscience  as  to  the  punish- 
ment.     But  there  is  this  difference,  that  the  ofTend- 

that  is,  the  laws  which  regulate  private  rights,  enforce  contracts,  punish 
crime,  and  regulate  the  transfer  of  property — remain  in  full  force,  so  far  as 
they  affect  the  inhabitants  of  the  country  among  themselves,  unless  sus- 
pended or  superseded  by  the  conqueror.  And  the  tribunals  by  which  the 
laws  are  enforced  continue  as  before,  unless  thus  changed.  In  other  words, 
the  municipal  laws  of  the  State,  and  their  administration,  remain  in  full  force 
so  far  as  the  inhabitants  of  the  country  are  concerned,  unless  changed  by  the 
occupying  belligerent.  Halleck,  Int.  Law,  c.  33."  Coleman  v.  Tennessee, 
supra. 


MILITARY  OCCUPATION  AND  GOVERNMENT    103 

Ing  soldier  has  the  statutory  right,  under  the  Articles 
of  War,  to  a  trial  by  court  martial  rather  than  by 
the  commander,  whereas,  in  a  case  of  war  treason,  the 
offender  has  no  right  to  trial  by  a  military  commission 
rather  than  by  the  commander.  The  commander  could 
try  the  case  himself,  if  he  chose ;  therefore,  the  court  he 
creates  is  wholly  legatory.  The  term  military  com- 
mission, first  applied  to  such  a  court  by  General  Scott 
in  the  Vera  Cruz  campaign,^^  was  scientifically  correct, 
and  it  has  continued,  in  our  courts'  recognition,  as  well 
as  army  practice,  to  the  present  day.^^  The  practice  of 
such  a  court  is  governed,  as  near  as  may  be,  by  that  of 
courts  martial;  and  its  jurisdiction  is  just  as  exclusive. 

If,  then,  the  commander  chooses  to  send  a  certain 
criminal  case  to  the  military  court,  the  civil  court  can- 
not release  the  prisoners  by  way  of  habeas  corpus.  Such 
was  the  holding  in  the  courts  of  Mississippi,  during  the 
Reconstruction  period,  while  that  State,  according  to 
the  theory  finally  adopted, ^^  was  under  military  control. ^^ 

The  judgments  of  such  a  court,  in  all  cases  whereof  it 
has  jurisdiction,  are  entitled  to  receive  from  our  courts 

32  See  Birkhimer,  op.  cit.  appendix,  for  Scott's  proclamation  featuring  the 
above;   also  the  arguments  in  Ex  parte  Milligan,  4  Wall.  2. 

33  See  Ex  parte  Vallandigham,  i  Wall.  293. 

34  Prior  to  that  question  being  settled,  Nelson,  J.,  sitting  in  New  York, 
discharged  from  the  Albany  penitentiary  a  prisoner  sent  there  under  the 
judgment  of  a  Military  Commission  sitting  in  South  Carolina  in  September, 
1865;  his  reasoning  being  that  military  control  ceases  with  the  termination 
of  actual  hostilities.    Re  Egan,  5  Blatch.  319;  Fed.  Case  4303. 

35  Re  McArdle,  2  Am.  Law  Review  355;  Ex  parte  Hewitt,  3  Am.  Law  Re- 
view 382.  A  record  of  the  trial  of  the  Columbus  Prisoners,  before  a  Military 
Commission  held  in  Atlanta  in  1868,  is  among  the  writer's  most  valued 
possessions.  Mr.  Jefferson  Davis,  on  the  contrary,  was,  by  Executive  Order, 
turned  over  to  the  civil  court  (the  United  States  District  Court,  sitting  at 
Richmond)  for  trial  on  an  indictment  for  treason.  See  U.  S.  v.  Davis,  Chase's 
Dec.  I ;   Blackford,  The  Trials  and  Trial  of  Jefferson  Davis,  54-55. 


104  THE  ARMY  AND  THE  LAW 

the  same  measure  of  faith  and  credit  as  would  be  due 
the  judgment  of  the  court  of  any  foreign  country.  In 
Dow  V.  Johnson  ^^  the  judgment  of  the  New  Orleans 
provisional  court  was  given  no  effect  because,  for  rea- 
sons already  detailed,  it  lacked  jurisdiction  of  the  sub- 
ject matter;  but  in  all  cases  not  involving  such  a 
question  as  that  presented  by  Dow  v.  Johnson,  full  faith 
and  credit  was  given  to  the  judgments  of  these  courts, 
not  merely  by  other  courts  on  collateral  attack,  but  by 
the  succeeding  regular  courts  of  the  States  in  which 
such  judgments  had  been  rendered.^^  Indeed,  long  prior 
to  the  Civil  War,  the  validity  of  the  judgments  of  such 
courts  had  been  upheld  in  Leitensdorfer  v.  Webb ;  ^^  the 
provisional  court  there  involved  having  been  estab- 
lished in  territory  occupied  by  our  forces  during  the 
Mexican  War. 

Fourth:  These  concessions  are  but  concessions ;  and 
in  the  end  the  power  of  the  commander  is  supreme. 
Concessions  granted  may  be  withdrawn;  they  need 
not  be  granted  in  the  first  place.  As  stated  both  by 
Lord  Halsbury  ^^  and  by  Oppenheim,^^  the  law  admin- 
istered, by  whatever  pattern  the  commander  may 
choose  to  model  it,  is  martial  law.  In  Napoleon's  words, 
"the  laws  of  war  confer  on  the  Commander  la  grande 
police  over  the  country  which  is  the  theatre  of  war."^^ 
"The  question  here,"  says  the  Supreme  Court,  "is,  what 

36  Supra. 

37  The  Grapeshot,  g  Wall.  129;  Pennywit  v.  Eaton,  15  Wall.  382;  Handlin 
V.  Wickliffe,  12  Wall.  173;  Pepin  v.  Lachenmeyer,  45  N.  Y.  27;  Hefferman  v. 
Porter,  6  Cold.  Tenn.  391. 

38  20  How.  186. 

38  Halsbury's  Laws  of  England,  supra. 

"  Supra. 

*i  Picard,  Preceptes  et  jugements  de  Napoleon,  97. 


MILITARY  OCCUPATION  AND  GOVERNMENT    105 

is  the  law  which  governs  an  army  invading  an  enemy's 
country.  It  is  not  the  civil  law  of  the  invaded  country; 
it  is  not  the  civil  law  of  the  conquering  country;  it  is 
military  law — the  law  of  war — and  its  supremacy  for 
the  protection  of  the  officers  and  soldiers  of  the  army, 
when  in  service  in  the  field  in  the  enemy's  country,  is  as 
essential  to  the  efficiency  of  the  army  as  the  supremacy 
of  the  civil  law  at  home,  and  in  time  of  peace,  is  essential 
to  the  preservation  of  liberty." ^^  And  when,  from  one 
point  of  view,  we  ask  for  a  definition  of  this  sort  of  mar- 
tial law,  the  oft-quoted  definition  given  by  Wellington 
is  as  good  as  any.  "Martial  law,"  said  the  Duke,  "is  the 
will  of  the  commanding  officer  of  an  armed  force  or  of  a 
geographical  military  department,  expressed  in  time  of 
war,  within  the  limits  of  his  military  jurisdiction,  as 
necessity  demands  and  prudence  dictates,  restrained  or 
enlarged  by  the  orders  of  his  military  or  supreme  execu- 
tive chief.  "^3 

Nevertheless,  the  enforcement  of  martial  law  is 
hedged  about  with  requirements  of  a  sort  no  civilized 
conqueror  can  ignore.  "The  commander  of  any  city 
where  martial  law  ^^  prevails,"  says  the  greatest  con- 
queror Europe  has  seen  since  Caesar,  "is,  after  all,  a 
magistrate,  and  he  should  conduct  himself  with  such 
moderation  and  decency  as  circumstances  will  permit."  "^^ 
While  the  soldiers  in  occupation  are  answerable  only  to 
court  martial,  yet  they  are  also  answerable,  says  our 
Supreme  Court,  to  the  tribunal  of  public  opinion, 
"which,  it  is  to  be  hoped,  will  always  brand  with  infamy 

*^  Dow  V.  Johnson  (supra). 

«  See  14  Hansard.  Pari.  Deb.  3d  Series,  879;  8  Op.  At.  Gen.  366. 

^  J^tat  de  siege. 

^  Picard,  op.  cit.  loi. 


I06         THE  ARMY  AND  THE  LAW 

all  who  authorize  or  sanction  acts  of  cruelty  and  oppres- 
sion."^^ Thus,  while  it  is  for  the  commander  to  pre- 
scribe the  extent  to  which  the  local  courts  shall  exercise 
jurisdiction,  our  Supreme  Court  got  a  chance,  in  the 
instance  of  a  State  under  reconstruction,  to  decide  that 
a  commander  could  not  arbitrarily  upset  the  judgment 
rendered  in  a  case  of  which  he  had  allowed  the  local 
court  to  take  jurisdiction.^^ 

It  must  be  noted,  in  view  of  matters  treated  in  the 
ensuing  chapter,  that  the  government  of  the  State  in 
question,  though  military,  yet  derived  its  powers  from 
acts  of  Congress.  That  circumstance,  and  that  alone, 
allowed  a  common  law  decision  on  matters  over 
which,  as  we  see,  the  common  law  ordinarily  has  no 
jurisdiction.  But,  whenever  it  can  speak,  thus  speaks 
the  common  law;  expressing  what  it  conceives  to  be 
a  principle  of  the  laws  of  war,  that,  even  in  a  con- 
quered country,  the  commander's  power,  next  to 
securing  the  welfare  of  the  army  and  the  stern  repres- 
sion of  all  forms  of  war  treason,  should  work  for  just 
treatment  of  the  civil  population.    The  best  evidence 

*^  Dow  V.  Johnson  (supra). 

*''  "We  have  looked  carefully  through  the  acts  of  March  2,  1867,  and  July  19, 
1867.  They  give  very  large  governmental  powers  to  the  military  commanders 
designated,  within  the  States  committed  respectively  to  their  jurisdiction;  but 
we  have  found  nothing  to  warrant  the  order  here  in  question.  It  was  not  an  order 
for  mere  delay.  It  did  not  prescribe  that  the  proceeding  should  stop  until 
credit  and  confidence  were  restored,  and  business  should  resume  its  wonted 
channels.  It  wholly  annulled  a  decree  in  equity  regularly  made  by  a  competent 
judicial  officer  in  a  plain  case  clearly  within  his  jurisdiction,  and  where  there 
was  no  pretense  of  any  unfairness,  of  any  purpose  to  wrong  or  oppress,  or  of  any 
indirection  whatsoever.  .  .  It  was  an  arbitrary  stretch  of  authority,  needful  to 
no  good  end  that  can  be  imagined.  Whether  Congress  could  have  conferred  the 
power  to  do  such  an  act  is  a  question  we  are  not  called  upon  to  consider.  It  is 
an  unbending  rule  of  law,  that  the  exercise  of  military  power,  where  the 
rights  of  the  citizen  are  concerned,  shall  never  be  pushed  beyond  what  the 
exigency  requires,"  Raymond  v.  Thomas,  91  U.  S.  712. 


MILITARY  OCCUPATION  AND  GOVERNMENT    107 

that  the  common  law  has  correctly  measured  the  rules 
which  it  thus  adopted,  is  to  be  found  in  the  professions 
of  our  enemy,  made  in  connection  with  his  occupation  of 
Belgium  and  of  Northern  France.  As  to  his  actual 
practices,  mankind  has  already  found  the  facts  and  ren- 
dered judgment.  But  scarcely  a  protestation  uttered,  or 
regulation  issued,  by  the  enemy,  fails  to  conform 
strictly  to  the  requirements  hereinabove  noted. ^^ 

To  the  credit  of  this  country's  arms,  an  occurrence  of 
the  kind  described  in  Raymond  v,  Thomas  ^^  is  very 
much  of  the  exceptional.  Military  control  of  occupied 
territory  is  generally  accompanied  by  friction,  for  high 
spirited  people  are  chafed  by  the  very  sight  of  their 
conquerors.  It  was  so  during  the  occupation  of  our 
coast  cities  by  the  British  during  the  Revolution ;  ^°  it 
was  so  during  the  Reconstruction  period  through 
which  the  Southern  States  were  compelled  to  pass  after 
the  close  of  the  Civil  War.^^  Yet  the  following  tribute 
may  well  be  quoted  from  a  brochure  of  our  own  time, 
which  certainly  is  not  tinged  with  bias: 

In  investigating  this  whole  subject  it  has  been  necessary 
to  read  many  pages  of  the  correspondence  between  the 

*8  The  reader  is  referred  to  the  German  Regulations  for  Belgium,  edited 
by  Huberich  and  Nicol-Speyer,  published  at  the  Hague  in  191 5;  De  Leval, 
Prussian  Law  as  applied  in  Belgium,  42  Rep.  Am.  Bar  Assn.  301 ;  and  the 
following  from  the  Times  Current  History:  German  Civil  Administration  in 
Belgium,  5  T.  C.  H.  136;  A  Talk  with  Belgium's  Governor,  2  T.  C.  H.  363; 
Under  German  Rule  in  France  and  Belgium,  6  T.  C.  H.  pt.  i,  525;  Whit- 
lock's  Report  on  Belgian  Deportations,  6  T.  C.  H.  Pt.  i,  543;  Belgian  Mem- 
orandum on  the  Same,  6  T.  C.  H.  Pt.  2,  143;  Gen.  von  Bissing's  Controversy 
with  Cardinal  Mercier,  5  T.  C.  H.  478;  Belgium's  Protest  on  Monthly  Tax  of 
4,000,000  francs,  3  T.  C.  H.  11 13;  Bryce  Commission's  Report,  2  T.  C.  H. 
551;  French  Report,  2  T.  C.  H.  259. 

<»  Supra. 

'°  e.  g.,  see  Jones,  History  of  New  York,  Vol.  2,  p.  186. 

"  See  Reynolds,  History  of  Reconstruction  in  South  Carolina,  40  et  seq.; 
Pendleton,  Life  of  Alexander  H.  Stephens,  343  et  seq. 


I08  THE  ARMY  AND  THE  LAW 

commanding  officers  of  the  Federal  armies  and  the  civil  de- 
partments, and  especially  between  them  and  Judge  Advo- 
cate General  Holt,  and  it  gives  pleasure  and  speaks  well  for 
human  nature,  to  note  that  whenever  a  gallant  Union  sol- 
dier had  to  deal  with  the  matter  of  the  treatment  of  a  Con- 
federate soldier  or  citizen,  his  tone  was  one  of  mercy,  of 
justice,  and  of  respect,  without  insult  or  harsh  expression,  and 
with  the  utmost  consideration  for  the  defenseless,  the  weak, 
and  the  unfortunate.  Everyone  knows  this  was  character- 
istic of  Grant,  but  the  same  may  well  be  said  of  Sheridan,  of 
Sherman,  of  Thomas  and  of  many  others.^^ 

Well  would  it  be  for  our  present  enemy  could  any 
honest  soldier  ever  find  it  in  his  heart  to  say  the  same  of 
all  the  German  commanders  who  have  controlled  the 
lives  and  honor  of  the  inhabitants  of  Belgium  and 
Northern  France!  But  humanity  in  treatment  of  the 
conquered  is  not  merely  a  thing  of  the  past  with  our 
army.  Its  record  of  constructive  achievement  justifies 
General  Leonard  Wood's  description  of  it  as  "one  of  the 
great  factors  in  the  development  of  our  country  and  of 
lands  under  our  control."  ^^ 

w  Blackford,  The  Trials  and  Trial  of  Jefferson  Davis,  p.  39.  The  only 
exception  noted  is  in  the  case  of  the  officer  to  whose  charge  Mr.  Davis  was 
committed,  and  his  behavior  is  ascribed  to  the  tone  of  the  instructions  given 
him  by  the  Secretary  of  War. 

53  Wood,  Our  Military  History,  225. 


VII 

MILITARY  OCCUPATION  IN  MATTERS 
OF  PROPERTY 

Since,  as  we  have  seen  in  the  last  chapter,  the  common 
law  view  is  that  conquest  confers  no  state  title  to  occu- 
pied regions,  it  naturally  follows  that  no  portion  of 
enemy  territory  can  pass  to  the  conqueror.  Private 
titles  in  land,  therefore,  remain  unaffected  by  invasion. 
To  real  estate  the  conqueror  may  not  acquire  title,  al- 
though its  usufruct  may  be  enjoyed ;  it  is  only  personal 
property  and  choses  in  action — movables — that  may 
constitute  the  subject  matter  of  capture.  Statutes  of 
confiscation  were  necessary  to  affect  the  title  to  land, 
and  no  larger  estate  can  pass  under  any  such  statute 
than  the  extent  of  the  estate  it  prescribes.^ 

Such  statutes  were  a  feature  of  the  Civil  War  on  both 
sides. 

The  Confederate  legislation  is  described  in  Dewing  v. 
Perdicaries,^  although  the  Supreme  Court  declined  to 
recognize  its  validity,  since  that  would  have  involved 
recognition  of  the  Confederate  government  as  existing 
dejure. 

The  first  Federal  statute  was  that  of  August  6,  i86i,^ 
which  confiscated  all  property  used  in  aid  of  the  re- 
bellion.    The  second  was  the  Act  of  July  17,  1862^ 

1  See  Miller  v.  U.  S.,  ii  Wall.  268. 

2  96  U.  S.  193. 

•  12  Stat.  319. 

*  12  Stat.  591. 


no  THE  ARMY  AND  THE  LAW 

which  confiscated  the  property  of  certain  classes  of  per- 
sons in  the  Confederacy,  whether  or  not  such  property 
was  being  used  in  aid  of  the  rebelHon ;  but,  in  view  of  the 
constitutional  provision  that  no  attainder  of  treason 
shall  work  a  forfeiture  except  during  the  life  of  the 
person  attainted,  a  joint  resolution  ^  amended  the 
statute  so  as  to  make  the  forfeiture  only  for  the  life  of 
the  person  in  question.®  The  third  Federal  statute  was 
the  Captured  and  Abandoned  Property  Act  of  March 
12,  1863  ^  whose  effect  we  have  heretofore  considered. 
These  statutes  had  varying  effects.  The  Act  of  186 1, 
which  confiscated  property  used  in  aid  of  the  rebellion, 
was  upheld  as  an  exercise  of  the  government's  war 
powers.  It  was  purely  impersonal,  and  acted  in  rem, 
directly  on  the  offending  and  hostile  property,  where- 
fore a  condemnation  sale  under  this  statute  would  pass 
a  fee  simple  title  to  the  purchaser.^  The  Act  of  1862,  on 
the  contrary,  had  a  very  different  object — "not  to  make 
the  property  a  lawful  subject  of  capture  and  prize,  as  in 
the  act  of  1 861,  but  to  punish  the  owner  for  countenanc- 
ing the  rebellion.  .  .  In  this  way  the  condemnation 
of  real  property  under  the  act  of  1862  was  confined  to 
the  natural  life  of  the  offending  owner;  but  nothing  of 
the  sort  was  done  under  the  act  of  1861,  because  that 
had  reference  only  to  the  capture  and  condemnation  of 
property  for  its  unlawful  use."^  The  Captured  and 
Abandoned  Property  Act  likewise  had  an  impersonal 
nature.    It  swept  into  the  treasury  the  proceeds  of  all 

6  12  Stat.  627. 

6  See  Miller  v.V.S.  {supra). 

'  12  Stat.  821. 

8  Miller  v.  U.  S.  {supra);   Kirk  v.  Lynd,  io6  U.  S.  315. 

«  Kirk  V.  Lynd,  106  U.  S.  315,  319;  U.  S.  v.  Dunnington,  146  U.  S.  338. 


MILITARY  OCCUPATION  AND  PROPERTY        iii 

property  which  the  Federal  troops  might  pick  up  during 
their  penetration  into  the  south,  leaving  it  to  the  owner 
to  assert  his  claim,  in  the  Court  of  Claims,  on  estab- 
lishing his  loyalty. 

For  all  three  Acts  a  pardon  operated  to  purge  the 
claimant  of  disloyalty  ^°  and,  for  the  confiscation  Act 
of  1861,  no  method  of  condemnation  procedure  was 
provided. 

^  Now,  while  legislation  of  this  sort  is  peculiar  to  civil 
war,  and  can  form  no  precedent  for  a  war  between  inde- 
pendent nations,  two  of  these  statutes,  those  of  1861 
and  1863,  serve  as  an  introduction  to  the  common  law's 
view  of  capture.  The  operation  of  each  statute  is 
wholly  in  rem.  It  is  not  necessary  that  the  owner  of  the 
property  be  named;  the  property  itself  is  the  defend- 
ant, and  the  owner  appears  on  the  record  only  as  a 
claimant. ^^  That  accords  precisely  with  the  common 
law's  view  of  capture  of  enemy  property  during  the 
operations  of  war,  as  stated  in  two  opinions  of  the 
Supreme  Court. 

Property  captured  during  the  war,  said  that  court, 
"was  not  taken  by  way  of  punishment  for  the  treason  of 
the  owner,  any  more  than  the  life  of  a  soldier  slain  in 
battle  was  taken  to  punish  him.  He  was  killed  because 
engaged  in  war,  and  exposed  to  its  dangers.  So  property 
was  captured  because  it  had  become  involved  in  the 
war,  and  its  removal  from  the  enemy  was  necessary  in 
order  to  lessen  their  warlike  power.  It  was  not  taken 
because  of  its  ownership,  but  because  of  its  character. 
But  for  the  provisions  of  the  Abandoned  and  Captured 

10  U.  S.  V.  Padelford.  9  Wall.  531;   U.  S.  v.  Klein,  13  Wall.  128. 
"  Confiscation  Cases,  20  Wall.  92. 


112  THE  ARMY  AND  THE  LAW 

Property  Act,  the  title  to  and  the  proceeds  of  all  cap- 
tured property  would  have  passed  absolutely  to  the 
United  States.  By  that  act,  however,  the  privilege  of 
suing  for  the  proceeds  in  the  treasury  was  granted  to 
such  owners  as  could  show  they  had  not  given  aid  or 
comfort  to  the  rebellion."  ^^ 

The  power  to  declare  war,  which  the  Constitution 
confers  upon  Congress,  carries  with  it  "the  power  to 
prosecute  it  by  all  means  and  in  any  manner  in  which 
war  may  be  legitimately  prosecuted.  It,  therefore,  in- 
cludes the  right  to  seize  and  confiscate  all  property  of 
an  enemy  and  to  dispose  of  it  at  the  will  of  the  captor. 
This  is  and  always  has  been  an  undoubted  belligerent 
right.  .  .  It  is  said  the  power  to  prosecute  war  is 
only  a  power  to  prosecute  it  according  to  the  law  of  na- 
tions, and  a  power  to  make  rules  respecting  captures  is  a 
power  to  make  such  rules  only  as  are  within  the  laws 
of  nations.  Whether  this  is  so  or  not  we  do  not  care  to 
inquire,  for  it  is  not  necessary  to  the  present  case.  It  is 
sufficient  that  the  right  to  confiscate  the  property  of  all 
public  enemies  is  a  conceded  right."  ^^ 

Captures  by  land  and  by  water,  however,  have  not 
been  similar  in  their  history.  Our  courts'  jurisdiction  of 
prize  automatically  comes  into  being  with  the  outbreak 
of  war.  The  Federal  statute  ^"^  confers  upon  the  United 
States  District  Courts  jurisdiction  "of  all  prizes  brought 
into  the  jurisdiction  of  the  United  States,  and  of  all 
proceedings  for  the  condemnation  of  property  taken  as 
prize."     It  is  the  same  with  England;    the  Probate, 

12  Young  V.  U.  S.,  97  U.  S.  39- 

"  Miller  v.  U.  S.  (supra). 

"  Judicial  Code  (191 1),  Sect.  24. 


MILITARY  OCCUPATION  AND  PROPERTY        113 

Divorce  and  Admiralty  Division  having  permanent 
jurisdiction  in  prize  under  the  Navy  Prize  Act,  1864. 
Originally  the  machinery  always  needed  an  initial  im- 
pulse, so  with  the  outbreak  of  war  the  English  Crown 
would  issue  a  commission  conferring  prize  jurisdiction  on 
the  Court  of  Admiralty.  But  whether  automatically 
set  in  motion  or  not,  the  essence  of  the  prize  court's 
jurisdiction  was  always  the  same.  It  is  well  described, 
as  the  English  Judges  have  lately  had  occasion  to  note, 
in  the  ancient  form  of  commission,  which  required  the 
Court  "to  proceed  upon  all  and  all  manner  of  captures, 
seizures,  prizes  and  reprisals,  of  all  ships  and  goods  that 
are,  or  shall  be,  taken;  and  to  hear  and  determine, 
according  to  the  course  of  the  admiralty  and  the  law  of 
nations."  ^^  This  jurisdiction  was  highly  exclusive;  so 
much  so  that,  if  captured  property  is  adjudged  not  to 
be  lawful  prize,  the  captor  cannot  be  sued  at  law  for  the 
trespass, ^^  but  the  Prize  Court  can  and  will  adjudge  the 
damages  that  ought  to  be  assessed  to  the  claimant.^^ 
Yet,  despite  the  international  and  exclusive  aspects  of 
its  jurisdiction,  a  prize  court,  when  sitting  in  any  com- 
mon law  country,  really  administers  a  body  of  law 
common  to  all  such  countries.  That  is  what  Marshall, 
C.  J.,  means  when  he  says: 

The  United  States  having,  at  one  time,  formed  a  com- 
ponent part  of  the  British  empire,  their  prize  law  was  our 
prize  law.  When  we  separated,  it  continued  to  be  our  prize 
law,  so  far  as  it  was  adapted  to  our  circumstances  and  was 
not  varied  by  the  power  which  was  capable  of  changing  it. 
.     .     .  A  case  professing  to  be  deciding  on  ancient  principles 

15  The  Zamora  (1916),  2  A.  C.  77,  91. 

18  LeCaux  v.  Eden,  2  Doug.  594;  Lamar  v.  Brown,  92  U.  S.  187. 

"As  an  instance  of  this  see  Little  v.  Barreme,  2  Cr.  170. 


114  THE  ARMY  AND  THE  LAW 

will  not  be  entirely  disregarded,  unless  it  be  very  unreason- 
able, or  be  founded  on  a  construction  rejected  by  other 
nations.^^ 

But  there  Is  no  such  court  with  respect  to  captures  on 
land;  if  such  a  jurisdiction  is  desired,  statutes,  of  the 
kind  above  described,  are  a  prerequisite.  That  has 
caused  an  Important  difference  between  sea  capture  and 
land  capture. 

In  sea  capture  no  title  passed  until  the  captured  thing 
had  been  brought  into  the  prize  court  and  condemned  by 
its  final  judgment;  wherefore.  If  an  enemy  vessel  be 
taken  by  our  ship  A^  rescued  by  an  enemy  war  vessel, 
and  then  again  captured  by  our  ship  B,  who  brings  her 
Into  the  custody  of  the  prize  court,  she  Is  lawful  prize  of 
the  By  not  the  A,^^  But  it  is  not  so  "in  general,  with  re- 
gard to  movable  property  on  land.  There  the  capture 
changes  the  ownership  without  adjudication,  unless 
restrained  by  governmental  regulations."^^ 

But  because  the  validity  of  a  capture  at  sea  depended 
on  an  adjudication,  prize  law  became  crystallized  at  an 
early  date.  With  captures  on  land,  on  the  contrary, 
there  were,  until  our  Civil  War,  but  few  opportunities 
for  adjudication,  and  hence  there  was  more  chance,  in 
advance  of  the  law's  crystallization,  for  the  growth  of 
humane  theory  to  constitute  a  formative  Influence. 
But  the  operation  of  such  forces  has  had  certain  reac- 
tions, resulting  In  the  present  view  of  land  capture  being 
more  or  less  uncertain  In  outline.  Consequently,  while 
there  has  been  much  talk  of  recent  years.  In  certain 
quarters,  of  altering  the  law  of  capture  at  sea,  the  effort 

^*  Thirty  Hogsheads  of  Sugar,  9  Cr.  190. 

19  The  Asirea,  1  Wheat.  125. 

20  Lamar  v.  Brown,  92  U.  S.  187. 


MILITARY  OCCUPATION  AND  PROPERTY        115 

of  our  courts,  with  respect  to  captures  on  land,  has  been 
to  estabHsh  some  sort  of  law  at  all. 

Opportunities  for  adjudication  of  such  points  were  in 
fact  rare.  As  already  said,  land  captures  required  no 
confirmatory  sentence  of  a  prize  court;  and  usually  it 
would  only  be  in  a  case  of  conquest  followed  by  incorpor- 
ation of  the  conquered  territory,  as  with  India  and  in  our 
Civil  War,  that  the  courts  of  the  captor  nation  would 
be  asked,  by  the  original  owner  of  the  captured  prop- 
erty, to  pass  upon  the  validity  of  its  seizure.  Neverthe- 
less, after  our  Spanish  War  of  1898,  the  Supreme  Court, 
on  four  occasions,  adjudged  at  the  suit  of  former  ene- 
mies, questions  of  land  capture.  From  these,  put  with 
our  civil  war  cases,  and  one  case  that  went  to  the  Privy 
Council  from  India,  we  may  gather  the  common  law 
view  of  land  capture. 

At  the  outset  of  this  inquiry  we  find  two  propositions 
accepted  by  the  common  law  mind.  One  was  that  the 
mere  fact  of  a  state  of  war  does  not  of  itself  transfer  title 
to  enemy  property.  In  the  absence  of  a  confiscation 
statute,  enemy  property  situated  in  our  own  country  is 
not  subject  to  capture,  except  such  property  as  might 
constitute  maritime  prize,^^  but  property  situated  in  the 
enemy  country  is  lawfully  subject  to  capture,  subject, 
however,  to  certain  considerations. 

First:  It  must  be  taken  into  possession,  for  the 
Roman  doctrine  of  intra  praesidia,"^^  accepted  by  the 
prize  courts  as  applying  up  to  the  time  when  the  ship 
arrives  in  the  custody  of  the  prize  court,^^  is  a  guiding 
first  principle. 

21  Brown  v.  U.  S.,  8  Cr.  no. 

22  As  to  which  see  Bordwell,  Laws  of  War  9  sq. 
2'  The  Astrea  {supra). 


Il6  THE  ARMY  AND  THE  LAW 

Second:  The  title  to  all  public  property  captured 
passes  directly  to  the  United  States  Government.^'* 
There  is  no  exception  or  limitation  to  this  proposition. 

Third:  Private  property  constituting  the  subject 
matter  of  capture  also  passes  directly  to  the  Govern- 
ment. The  right  of  private  pillage  is  not  recognized  by 
the  laws  of  war  as  read  by  common  law  courts.  Up 
through  the  Napoleonic  wars  pillage  was  recognized  as 
lawful  in  the  case  of  a  town  taken  by  storm, ^^  but  that 
rule  has  become  obsolete;  pillage  indeed  being  made  a 
special  object  of  prohibition,  under  all  circumstances. 
The  second  Hague  Convention  ^^  forbids  pillage,  but 
long  before  that  time  Lieber's  Code  ^^  forbade  it  "even 
after  taking  a  place  by  main  force."  Pillage,  therefore, 
confers  no  title.  Not  only  have  we  for  this  the  high 
authority  of  the  Supreme  Court,^^  but  we  also  have  two 
decisions  to  that  effect  rendered  in  Georgia  after  the 
Civil  War;  each  case  being  a  possessory  action  for 
property  of  the  plaintiff  which  had  been  taken  by  the 
pillagers,  following  in  the  wake  of  the  Federal  army.^^ 

Finally  arises  the  question  whether  there  should  be 
any  distinction  in  classes  of  personal  property  subject  to 
capture.  We  have  on  the  one  hand  the  theory  of 
Clause witz  ^°  that  requisitions  of  enemy  property  should 
have  no  limit  except  as  fixed  by  the  final  exhaus- 

"  U.  S.  V.  Huckabee,  i6  Wall.  414;  Elphinstone  v.  Bedeechrund,  i  Knapp 
P.  C.  316,  Atkinson  v.  Central,  etc.,  Railway  Co.,  58  Ga.  227. 

26  This  exception  is  allowed  by  Kent,  i  Comm.  92.  Indeed  it  goes  far 
back  of  Grotius'  time.    See  Montaigne,  Essay  14. 

26  Art.  28. 

27  Section  44. 

28  U.  S.  V.  Klein.  13  Wall.  128. 

2*  Worthy  v.  Kinomon,  44  Ga.  297;   Huff  v.  Odom,  49  Ga.  395. 
M  On  War,  V.  c.  14,  3. 


MILITARY  OCCUPATION  AND  PROPERTY       117 

tion  of  the  country,  and  that  in  fact  requisitioning 
should  be  used  as  a  method  of  keeping  the  country  down. 
Opposed  to  that  we  have  the  theory  that  there  must 
be  some  quaHty,  appurtenant  to  the  property  itself, 
rather  than  the  personality  of  its  owner,  which  would 
justify  the  capture.  And  this  quality  must  relate,  in 
however  direct  or  remote  degree,  to  the  welfare  of  the 
captor's  government ;  it  must  subserve  a  war  purpose  of 
that  government.  Therefore,  while  all  public  property 
of  the  enemy  was  a  free  subject  of  capture  ^^  as  con- 
stituting sinews  of  war  from  its  very  nature,  no  such 
generalization  should  be  applied  to  private  property. 
This  distinction  appears  from  the  following  language  of 
our  Supreme  Court : 

It  does  indeed  appear  to  be  a  principle  of  international 
law  that  a  conquering  state,  after  the  conquest  has  subsided 
into  government,  may  exact  payment  from  the  state  debtors 
of  the  conquered  power,  and  that  payments  to  the  con- 
queror discharge  the  debt,  so  that  when  the  former  govern- 
ment returns  the  debtor  is  not  compellable  to  pay  again. 
This  is  the  doctrine  stated  in  Phillimore  on  International 
Law  ^^  to  which  we  have  been  referred.  But  the  principle  has 
no  applicability  to  debts  not  due  to  the  conquered  state. 
Neither  Phillimore  nor  Bynkerschoeck,  whom  he  cites, 
asserts  that  the  conquering  state  succeeds  to  the  rights  of  a 
private  creditor.  ^^ 

The  necessary  line  of  distinction  regarding  private 
property  had  been  so  clearly  drawn  prior  to  our  Civil 
War,  by  many  writers,  including  Halleck  ^^  and  the 

'^  Elphinstone  v.  Bedeechrund,  i  Knapp  P.  C.  316. 
'^  Vol.  3,  part  12,  c.  4. 

33  Planter's  Bank  v.  Union  Bank,  16  Wall.  483. 
^  Int.  Law.  456. 


Ii8  THE  ARMY  AND  THE  LAW 

common  law  man  Kent,^^  that  our  Supreme  Court,  dur- 
ing that  conflict,  at  first  accepted  Kent's  dictum  that 
capture  of  private  property  is  restricted  "to  special  cases 
dictated  by  the  necessary  operation  of  the  war,"  and 
never  includes  "the  seizure  of  the  private  property  of 
pacific  persons  for  the  sake  of  gain."^^  This,  indeed,  left 
a  broad  field  for  the  courts'  operations. 

In  the  first  place,  it  gave  the  courts  room  to  establish 
a  contraband  list  for  land  captures ;  and  the  article  first 
placed  upon  this  list  was,  as  might  be  imagined  from  the 
nature  of  the  Confederacy's  resources,  cotton.  It  was, 
said  the  Supreme  Court,  well  known  that  cotton  con- 
stituted "the  chief  reliance  of  the  rebels  for  means  to 
purchase  the  munitions  of  war  in  Europe,"  and  that 
"rather  than  permit  it  to  come  into  the  possession  of  the 
national  troops,  the  rebel  government  had  everywhere 
devoted  it,  however  owned,  to  destruction. "^^  Inde- 
pendently, therefore,  of  the  legislation  afforded  by  the 
Confiscation  Act  of  August  6, 1 86 1, already  mentioned, 
the  court  considered  cotton  a  fair  subject  of  capture.  It 
became,  therefore,  axiomatic  during  the  civil  war  "that 
cotton,  though  private  property,  was  a  legitimate  sub- 
ject of  capture." ^^ 

Second  in  our  order  of  speaking,  though  hardly  in 
importance,  was  the  principle  that  all  property  needful 
for  the  army  was  a  legitimate  subject  of  capture.  Here 
we  are  at  one  of  those  many  points  of  contact  where  the 
common  law  meets  a  principle  originating  in  another 
body  of  law. 

^5  I  Kent  Com.  91-93. 
36  Mrs.  Alexander's  Cotton,  2  Wall.  404. 
»7  Mrs.  Alexander's  Cotton  (supra). 
»  Lamar  v.  Brown,  92  U.  S.  187. 


MILITARY  OCCUPATION  AND  PROPERTY        119 

Among  the  laws  of  war  was  the  system  of  requisitions 
which  had  grown  up,  as  a  substitute  for  pillage.  This 
system  finds  codification  in  an  oft-quoted  passage  from 
the  Memoirs  of  Marshal  Saxe,^^  but  it  originated  long 
prior  to  the  Marshal's  time/°  In  Napoleon's  works 
may  be  found  a  valuable  code  of  rules  regarding  a  sys- 
tem which,  as  he  said,  had  been  used  "time  out  of  mind,"^^ 
and  is  based  on  the  fundamental  proposition  that  war 
should  support  war.^^  Qf  the  same  character  are  con- 
tributions, which  originated  in  Gustavus  Adolphus' 
practice  of  ransoming  towns  from  pillage.     Our  Civil 

^  See  Bordwell  Laws  of  War,  43  sq. ;  Gregory,  Contributions  and  Requi- 
sitions, IS  Columbia  Law  Review  20.  In  a  letter  to  the  Chief  of  Staff  of  the 
Army  in  Spain,  Corr.  No.  18418,  Napoleon  approves  the  Saxe  regulations  as 
vStanding  out  from  "a  collection  of  exceedingly  mediocre  reflections."  Picard, 
Preceptes  et  Jugements  de  Napoleon  545. 

*>  In  Defoe's  Journal  of  the  Plague  Year,  he  has  a  refugee  from  London 
assert  that,  despite  a  quarantine  maintained  in  a  village,  he  and  his  friend 
could  take  food  and  fire  there,  provided  they  first  tendered  money;  to  which 
his  companion  replied,  "You  talk  your  old  soldier  language,  as  if  you  were  in 
the  Low  Countries  now."  Dugald  Dalgetty,  that  life-like  figure  which  Scott 
gives  us,  in  the  Legend  of  Montrose,  of  a  soldier  of  fortune  fresh  from  the 
wars  of  Gustavus  Adolphus,  is  full  of  the  learning  of  requisitions. 

*^  Ainsi  depuis  le  monde  est  le  monde. 

42  Que  la  guerre  doit  nourrir  la  guerre.  On  the  subject  of  requisitions, 
Picard  has  collected  from  Napoleon's  writings  over  two  pages  of  valuable 
reflections  (Picard,  Preceptes  et  Jugements  de  Napoleon,  228-230).  These 
may  be  summarized  as  follows:  (i)  It  should  be  done  only  by  the  supreme 
command,  general  en  chef,  commissaire,  ordonnateur  en  chef,  or  in  case  of 
urgency,  le  general  de  division;  (2)  Outside  of  horses  taken  in  battle,  no 
soldier  or  officer  can  take  prize  of  war;  (3)  Those  things  only  should  be 
taken  which  are  necessary  aux  soldats,  aux  hopitaux,  aux  transports,  et  d 
Vartillerie;  (4)  Payment  must  be  made  in  promissory  notes  or  I.  O.  U.'s 
{des  bons  sur  lesquels  on  paiera  par  la  suite).  The  fixing  of  the  price  is  a  com- 
ponent part  of  the  requisition.  This  last  proposition,  however,  is  not  a  neces- 
sary part  of  the  law.  Requisitions  and  contributions  do  not  connote  the  idea 
of  payment.  In  the  Mexican  War,  the  War  Department  instructed  Generals 
Scott  and  Taylor  to  make  no  payments;  but  they  nevertheless  did  pay  for 
goods  requisitioned,  Birkhimer  op.  cit.  103.  So  did  Lee's  army  pay  for  sup- 
plies requisitioned  in  Pennsylvania.  Nevertheless,  the  commander's  right  to 
requisition  goods  without  payment  cannot  be  denied. 


I20  THE  ARMY  AND  THE  LAW 

War  affords  examples  of  both  practices.^^  The  test  of  a 
contribution  or  requisition,  under  the  common  laws  of 
war,  should  be  simply  the  needs  of  the  army.^^  Outside 
of  this  rule's  protection,  the  taking  is  plain  pillage,  and 
its  object  is  "mere  booty  of  war."^^ 

Such  is  that  branch  of  the  common  law  of  war.  For 
acts  done  in  conformity  with  such  rules,  no  officer  or 
soldier  should  be  in  anywise  liable.  The  Supreme  Court 
fully  expressed  that  view  in  these  words : 

But  there  could  be  no  doubt  of  the  right  of  the  army  to 
appropriate  any  property  there,  although  belonging  to 
private  individuals,  which  was  necessary  for  its  support  or 
convenient  for  its  use.  This  was  a  belligerent  right,  which 
was  not  extinguished  by  the  occupation  of  the  country,  al- 
though the  necessity  for  its  exercise  was  thereby  lessened. 
However  exempt  from  seizure  on  other  grounds  private 
property  there  may  have  been,  it  was  always  subject  to  be 
appropriated,  when  required  by  the  necessities  or  con- 
venience of  the  army,  though  the  owner  of  property  taken  in 

*3  One  of  General  Pope's  orders  provided  for  a  system  of  requisitions,  and 
to  it  no  exception  can  be  taken.  Ropes,  The  Army  under  Pope,  9.  General 
Sherman  excuses  the  system  of  foraging  which  he  employed  during  the 
march  to  the  sea,  because  "the  country  was  sparsely  settled,  with  no  magis- 
trates or  civil  authorities,  who  could  respond  to  requisitions,  as  is  the  case  in 
all  the  Wars  of  Europe."  Sherman,  Memoirs,  Vol.  II,  p.  183.  This,  of  course, 
has  nothing  to  do  with  the  destruction  of  property  that  occurred  during  the 
march.  During  the  Confederate  invasion  of  Pennsylvania,  in  the  campaign 
of  Gettysburg,  General  Early,  commanding  a  division  of  the  leading  corps 
(Ewell's)  imposed  two  contributions,  one  on  Gettysburg,  the  other  on  York. 
The  first  contribution  the  General  failed  to  collect,  the  second  he  collected  in 
part.  Gordon,  Reminiscences  146-147;  Doubleday,  Chancellorsville  and  Get- 
tysburg 1 13 ;  Beecham,  Gettysburg  38-40.  For  General  Lee's  protest  against 
the  excessive  assessments  levied  by  General  Milroy  on  Winchester,  and 
General  Halleck's  disavowal  of  the  same,  see  Lee's  Confidential  Dispatches 
to  Davis  70,  and  citations  to  the  Official  Records. 

**  Oppenheim,  International  Law,  vol.  2,  p.  146,  Gregory  op.  cit. 

«  Planter's  Bank  v.  Union  Bank  {supra). 


MILITARY  OCCUPATION  AND  PROPERTY       121 

such  case  may  have  had  a  just  claim  against  the  government 
for  indemnity.** 

Nor  can  a  collateral  attack  upon  a  requisition  order  be 
any  more  effective.  If  the  subject  of  the  requisition  be  a 
chose  in  action,  not  merely  must  the  debtor  obey  the 
order  of  attachment;  but  his  payment  in  obedience 
thereto  constitutes  a  perfect  defense  to  a  subsequent  ac- 
tion by  the  original  creditor.^^ 

But  while  the  courts  thus  accepted  the  principle,  its 
application  is  quite  a  different  thing.  It  is  easy  to  state 
the  principle  as  a  theory  of  law,  while  giving  the  de- 
fendant the  favorable  side  of  it;  it  is  quite  a  different 
matter  to  hold,  in  a  common  law  court,  that  a  com- 
mander's acts,  committed  in  enemy  country  against  the 
public  enemy,  were  void  in  point  of  law.  Outside  of 
certain  limits,  narrow  indeed  as  compared  with  the 
principle  so  readily  accepted  in  the  abstract,  our  courts 
have  never  even  dreamed  of  holding  any  such  acts  to 
have  been  actionable  or  void. 

During  the  flagrancy  of  the  war,  the  commander's 
judgment  as  to  the  propriety  of  a  contribution  or  requi- 
sition necessarily  must  be  absolute,  and  so  agree  all  the 
cases.*^  The  same  proposition  would  apply  to  destruc- 
tion of  property,  as  distinct  from  its  consumption  or  use, 
during  an  active  campaign.  For  any  such  act,  there- 
fore, the  commander  and  his  subordinates  are  not 
liable,  in  a  civil  action,  to  the  aggrieved  owner,*^  nor  is 

«  Dow  V.  Johnson,  loo  U.  S.  158. 

"  Harrison  v.  Myers,  92  U.  S.  iii;   Gates  v.  Goodloe,  loi  U.  S.  612. 

*^  Elphinstone  v.  Bedeechrund,  (supra);  Dow  v.  Johnson  (supra);  Ribas  y 
Hijo  V.  U.  S.,  194  U.  S.  310,  24  Sup.  Ct.  727;  Herrara  v.  U.  S.,  222  U.  S.  558. 
32  Sup.  Ct.  Rep.  179. 

^9  Elphinstone  v.  Bedeechrund  (supra);  Dow  v.  Johnson  (supra).  "This 
doctrine  of  non-liability  to  the  tribunals  of  the  invaded  country  for  acts  of 


122  THE  ARMY  AND  THE  LAW 

the  Government  liable  to  suit  in  the  Court  of  Claims 
because  of  the  principle  to  which  further  attention  will 
later  be  called,  that  no  claim  lies  against  the  Govern- 
ment for  a  tort.^° 

The  final  conclusion,  which  all  decided  cases  makes  us 
accept,  is  that  the  act  of  a  commander  could  under  no 
possibility  be  questioned,  except  when  it  occurs  during 
a  quiet  occupation  of  territory  as  distinct  from  occupa- 
tion in  full  campaign.  There,  indeed,  is  the  only  real 
line  of  distinction.  In  full  campaign,  the  commander's 
acts  are  non- justiciable.  But  when  "the  conquest  has 
subsided  into  government"  to  use  the  Supreme  Court's 
language  above  quoted,  the  common  law  power  of  re- 
view can  intrude  itself.  Such  a  review  was  had  in 
Raymond  v.  Thomas,^!  discussed  in  the  last  chapter; 
and  such  a  review  possibly  would  have  been  had  in 
O'Reilly  v.  Brooke,^^  were  it  not  for  the  circumstance  of 
ratification  to  which  we  shall  advert. 

Since  the  Government  is  in  no  way  liable  to  a  former 
enemy  in  any  claim  of  tort,  his  suit  of  necessity  must  be 
brought  against  the  officer  making  or  authorizing  the 
capture.    If  the  capture  was  not  in  accordance  with  the 

warfare  is  as  applicable  to  inembers  of  the  Confederate  army,  when  in 
Pennsylvania,  as  to  members  of  the  National  Army,  when  in  the  insurgent 
States.  The  officers  or  soldiers  of  neither  army  could  be  called  to  account 
civilly  or  criminally  in  those  tribunals  for  such  acts,  whether  those  acts  re- 
sulted in  the  destruction  of  property  or  the  destruction  of  life;  nor  could 
they  be  required  by  those  tribunals  to  explain  or  justify  their  conduct  upon 
any  averment  of  the  injured  party  that  the  acts  complained  of  were  unauthor- 
ized by  the  necessities  of  war."  Dow  v.  Johnson  {supra).  To  the  same  effect 
are  two  decisions  recently  rendered,  concerning  requisitions  made  by  Car- 
ranzista  commanders  in  Mexico.  Getjen  v.  Central  Leather  Co.,  38  Sup. 
Ct.  Rep.  309;  Rigand  v.  American  Metal  Co.  id.  312. 

60  Ribas  y  Hijo  v.  U.  S.  {supra);   Herrara  v.  U.  S.  {supra). 

«  91  U.  S.  712. 

w  209  U.  S.  45 ;  28  Sup.  Ct.  Rep.  439. 


MILITARY  OCCUPATION  AND  PROPERTY        123 

laws  of  war  as  above  outlined,  then  theoretically  the 
plaintiff  could  recover,  but  it  is  always  open  to  our 
Government  to  ratify  an  act  committed  by  an  officer. 
When  that  ratification  has  been  made,  the  case  is  then 
within  the  principle  whose  existence  in  the  abstract  re- 
mains, however  modified  by  pledge  or  practice,  that 
"whatever  shall  be  the  subject  of  capture,  as  against  his 
enemy,  is  always  within  the  control  of  every  belligerent. 
Whatever  he  orders  is  a  justification  to  his  followers. "^'^ 
The  case  then  passes  from  the  domain  of  the  common 
law  into  affairs  of  State,  of  which  the  common  law 
courts  can  take  no  cognizance.^^  In  O'Reilly  v.  Brooke, 
General  Brooke,  during  the  military  occupation  of 
Cuba,  issued  an  order  abolishing  the  office  of  Hereditary 
Slaughterer  of  Cattle  in  Havana,  and  the  concessionaire, 
a  Spanish  Countess,  sued  him  for  damages.  On  the 
defendant  showing  that  after  his  order  had  been  issued 
it  was  ratified  by  the  indemnity  provision  contained  in 
the  Piatt  amendment,^^  the  Supreme  Court  held  that 
the  defendant  was  not  liable.  The  court  said  that, 
whatever  might  be  the  modern  rule  as  to  the  protective 
effect  of  a  master's  ratification,  of  his  servant's  tort, 
the  old  doctrine  of  full  protection  "still  is  applied,  to  a 
greater  or  less  extent,  when  the  master  is  the  sovereign." 
Therefore,  "where,  as  here,  the  jurisdiction  of  the  case 
depends  upon  the  establishment  of  a  'tort  only  in  viola- 
tion of  the  law  of  nations,  or  of  a  treaty  of  the  United 
States',  it  is  impossible  for  the  courts  to  declare  an  act 
a  tort  of  that  kind  when  the  Executive,  Congress,  and 
the  treaty-making  power  all  have  adopted  the  act." 

M  Lamar  v.  Brown,  92  U.  S.  187. 

"  O'Reilly  v.  Brooke  (supra);   Buron  v.  Denman,  2  Exch.  167. 

w  Act  of  March  2,  1901,  31  Stat.  897- 


124  THE  ARMY  AND  THE  LAW 

In  this  connection  let  us  again  return  to  the  civil  war 
statutes.  The  confiscation  acts  of  1861  and  1862  might 
have  been  considered  as  merely  defining  classes  of 
enemy  property  fit  for  capture,  leaving  it  for  the  courts 
to  devise  a  method  of  condemnation  proceedings  in  rem 
similar  to  the  proceedings  of  a  prize  court. ^^  But  the 
Captured  and  Abandoned  Property  Act  went  even 
further  in  language.  Despite  the  "humane  maxims"  of 
the  modern  law  of  nations,  which  exempt  private  prop- 
erty of  non-combatant  enemies  from  capture  as  booty  of 
war,"  this  statute  failed  to  define  the  classes  of  property 
suitable  for  capture.  As  no  claimant  could  succeed  in 
a  suit  for  the  property's  proceeds  unless  he  could  show 
that  he  had  been  either  loyal  or  pardoned,  it  would  result 
that,  on  the  face  of  the  statute,  all  property  belonging  to 
real  enemies  was  the  subject  of  lawful  capture.^^  The 
Supreme  Court,  however,  never  gave  the  statute  such  a 
broad  meaning,  but  rather,  in  the  cases  actually  before 
it,  was  careful  to  point  out  that  cotton,  which  was  the 
subject  matter  of  each  decided  case,  was,  for  the  reasons 
already  given,  lawful  spoil.  It  was  also  careful  to  say 
that,  while  statutes  like  the  confiscation  acts  might  en- 
large the  classes  of  property  subject  to  capture,  the 
Government  might  equally  well,  by  a  public  pledge, 
limit  such  classes.  The  whole  tenor  of  the  legislation 
and  proclamations  during  the  Civil  War  constituted 
such  a  pledge;  a  pledge  that  districts  brought  under 
complete  and  permanent  control  by  the  United  States 
troops  were  not  to  be  treated  as  theaters  of  war  or  as 

M  Miller  v.  U.  S.,  ii  Wall.  268;  Tyler  v.  Defrees.  11  Wall.  331. 
"  U.  S.  V.  Klein  {supra). 
w  Lamar  y.  Bj-pwn  {supra). 


MILITARY  OCCUPATION  AND  PROPERTY        125 

subject  to  requisitions.^^  The  law  then  stood  prac- 
tically that  in  the  absence  of  a  pledge  restricting,  or  a 
statute  extending,  the  classifications  of  private  property 
for  purposes  of  capture,  the  courts  will,  in  theory,  allow 
the  doctrines  of  the  common  laws  of  war. 

And  those  doctrines,  as  we  have  seen,  whatever  they 
may  be,  can  be  applied  by  common  law  courts  only  in 
the  case  of  quiet  government  as  distinct  from  full  cam- 
paign ;  and  even  then  only  to  the  extent  that  the  Gov- 
ernment has  neither  directed  nor  ratified  the  act  in 
question.  The  Supreme  Court  was  right,  therefore,  in 
recently  saying  that,  by  none  of  the  decisions  already 
examined,  was  it  "intended  to  express  a  limitation  upon 
the  undoubted  belligerent  right  to  use  and  confiscate  all 
property  of  an  enemy  and  to  dispose  of  it  at  will,"  and 
that,  as  for  Kent's  rule,  "the  question  could  be  raised 
whether  it  presented  a  case  for  judicial  cognizance,  even 
if  a  court  could  share  the  indignation  which  the  learned 
commentator  says  all  mankind  would  feel  (at  a  viola- 
tion of  it)." «« 

The  subject  thus  discussed  has,  so  far,  presented 
itself  to  our  courts  only  with  respect  to  enemy  property 
in  the  shape  of  goods  and  credits.  Concerning  the  con- 
queror's alleged  right  to  requisition  the  service  or  labor  of 
the  enemy  citizen  for  non-military  purposes,  no  common 
law  court  has  as  yet  had  occasion  to  make  a  suggestion. 
Consistency  with  the  scheme  of  this  book  would,  there- 
fore, induce  a  like  silence  on  the  writer's  part. 

w  The  Venice,  2  Wall.  258;  Planters*  Bank  v.  Union  Bank,  16  Wall.  483. 
In  Gates  v.  Goodloe  cited  supra,  the  Court  noted,  as  a  distinguishing  feature, 
that  the  military  occupation  was  neither  complete  nor  substantial. 

«  Herrara  v.  U.  S.  (supra). 


VIII 

THE  SOLDIER^S  RELATION  TO  THE 
CIVILIAN  IN  TIME  OF  PEACE 

At  an  earlier  juncture  we  dealt  with  the  soldier  in  rela- 
tion to  his  fellow  or  superior  in  the  army.  We  have  just 
examined  the  relation  which  the  army  and  its  members 
bear  to  the  enemy,  armed  and  non-combatant,  at  home 
and  abroad.  It  remains  to  consider  the  duties  and  obli- 
gations of  the  army  and  its  members  with  respect  to  the 
civilian  population  of  our  own  country.  These  duties 
and  obligations  vary  with  the  circumstance  of  peace  or 
war,  and  necessarily,  because  the  uses  of  the  army  ex- 
pand or  contract  according  to  whether  its  medium  is  the 
state  of  peace  or  the  state  of  war. 

When  we  commence  our  inquiry,  as  we  naturally 
would,  with  the  state  of  peace,  we  realize  instantly  that 
all  questions  as  between  the  soldier  and  the  civilian  are 
within  the  jurisdiction  of  common  law  courts.  Na- 
turally the  common  law  controls  all  the  actions  of  all 
persons  except  those  who,  by  virtue  of  particular  status, 
have  put  themselves  within  the  exclusive  jurisdiction  of 
some  special  court.  The  court  martial,  as  we  have  seen, 
has  jurisdiction  only  of  military  offenses,  and  at  best  its 
jurisdiction  is  merely  concurrent  with  that  of  a  civilian 
criminal  court  in  a  case  where  a  military  offense  may 
also  constitute  a  crime. 

Outside  of  military  offenses,  there  is  no  question  of 
status  about  the  soldier.    If  he  is  interested  in  a  propo- 


THE  SOLDIER  AND  CIVILIAN  IN  PEACE         127 

sition  of  property  or  contract,  that  question  is  deter- 
mined in  the  civil  courts.  Usually  it  is  a  matter  of  acci- 
dent that  a  party  happens  to  be  in  the  military  service, 
the  materiality  of  such  a  circumstance  consisting 
mostly  in  questions  of  domicile.^  For  that  reason,  the 
demand  for  some  sort  of  moratorium  with  respect  to 
debts  owing,  and  necessary  burdens,  like  life  insurance 
premiums,  borne  by  soldiers  now  in  our  service,  had  to 
be  fulfilled  by  statute,  for,  in  the  absence  of  a  statute, 
no  common  law  court  can  refuse  to  enter  judgment 
against  a  debtor  simply  because  he  is  doing  his  duty  for 
the  government.  That  statute  Congress  has  given  us  in 
the  Act  of  March  8,  1918. 

The  only  case  in  which  the  soldier's  status  can  be  of 
any  substantive  interest  to  a  common  law  court,  there- 
fore, is  where  the  issues  involve  the  duties  and  obliga- 
tions of  the  soldier  insofar  as  they  may  impinge  upon 
a  civilian's  rights.  If  a  soldier  shoots  a  civilian  in  the 
street  and  is  sued  for  an  assault,  obviously  the  fact  that 
the  defendant  is  a  soldier  is  of  no  importance.  But  if 
the  soldier  were  a  sentry  and  shot  a  civilian  who  was 
trying  forcibly  to  enter  a  Government  reservation,  then 
the  fact  that  the  defendant  was  a  soldier  requires  the 
Court  to  determine  whether  he  had  exerted  such  powers  as 
the  law  allowed  him,  and  no  more,  in  committing  the  act. 

In  considering  a  case  of  this  sort  we  must  eliminate  at 
once  any  circumstances  which,  apart  from  the  particu- 

^  "It  appears  that  General  Grant  at  the  time  of  his  death  was  an  officer  in 
the  regular  army  of  the  United  States.  The  domicile  of  military  men  is  often 
more  difficult  for  the  courts  to  determine  than  is  the  domicile  of  those  in  civil 
life.  The  adjudications  bearing  on  the  principle  of  domicile,  applicable  to 
non-military  persons,  are  not,  I  think,  always  relevant  in  cases  involving  the 
principle  of  domicile  as  it  is  applied  to  military  or  naval  men."  Surrogate 
Fowler,  in  Matter  of  Grant,  83  Misc.  257. 


128  THE  ARMY  AND  THE  LAW 

lar  questions  in  which  we  are  interested,  cannot  be  of 
decisive  force.  We  can  thus  eliminate  questions  of  the 
kind  raised  in  Bean  v,  Beckwith^  and  Beckwith  v. 
Bean,^  whether  a  misdemeanant  can  be  arrested  with- 
out a  judicial  warrant,^  because  such  points  have  noth- 
ing to  do  with  the  military  status  of  the  defendant.  It 
is  only  when,  under  the  facts  of  the  case,  such  questions 
can  be  eliminated,  that  we  get  to  the  legal  propositions 
which  are  involved  in  the  military  status  of  the  de- 
fendant inflicting  the  harm. 

First  of  all,  let  us  remember  that  no  case  of  this  sort 
can  arise  unless  the  defendant  pleads  that  he  committed 
the  acts  under  the  obligations  which  his  official  position, 
as  recognized  by  law,  imposed  upon  him.  The  de- 
fendant must  plead  an  obligation  resting  upon  him  to 
do,  as  he  conceived  it,  the  acts  which  harm  the  plaintiff. 
The  source  of  such  an  obligation  is  exterior  to  the  de- 
fendant's will.  The  common  law  court  cannot  recognize 
any  impulse  other  than  one  recognized  by  the  law  itself, 
and  as  the  defendant,  by  the  plea  in  question,  admits 
that,  outside  of  the  special  obligations  of  his  position,  his 
act  would  be  a  wrong,  he  must  find  a  foundation  for  his 
obligation  in  a  positive  rule  in  the  shape  of  a  statute,  or 
regulation  enacted  pursuant  to  statute,  or  the  order  of  a 
superior  given  pursuant  to  regulation  and  statute.  If 
he  can  find  something  of  the  sort,  then  he  presents  a  case 
where,  although  the  harm,  to  use  Professor  Burdick's 
terminology,^  as  distinct  from  the  injury,  was  un- 
doubtedly inflicted,  the  cause  of  the  harm,  the  person 

2  i8  Wall.  510. 
»  98  U.  S.  260. 

*  See  Davis,  Military  Law,  493  n. 

*  Burdick,  Torts,  2d  ed.,  42. 


THE  SOLDIER  AND  CIVILIAN  IN  PEACE         129 

responsible  therefor,  is  not  the  defendant  but  the 
government. 

Assuredly  the  court  has  jurisdiction  to  pass  upon  the 
soundness  of  such  a  plea,  for  if  the  defendant  fails  to 
make  it  good,  then  the  case  must  proceed  to  judgment. 
*  Where  an  individual  is  sued  in  tort  for  some  act  injur- 
ious to  another  in  regard  to  person  or  property,  in  which 
his  defense  is  that  he  had  acted  under  the  orders  of  the 
government  .  .  .  he  is  not  sued  as  an  officer  of  the 
government  but  as  an  individual,  and  the  court  is  not 
ousted  of  jurisdiction  because  he  asserts  the  authority  of 
such  office.  To  make  out  that  defense,  he  must  show 
that  his  authority  was  sufficient  in  law  to  protect  him."^ 
By  virtue  of  such  reasoning  it  has  been  held  that  where 
officers  of  the  government  are  in  possession  of  land  as  a 
military  reservation,  and  the  plaintiff  brings  ejectment, 
claiming  title,  and  defendant's  plea  of  the  government's 
title  presents  only  a  question  of  title,  if  the  plaintiff's 
claim  is  superior  he  will  of  course  prevail.^  Always, 
then,  not  only  must  the  defendant  assert  lawful  author- 
ity for  his  act,  but  he  must  demonstrate  it. 

This  authority  can  be  either  express  or  general,  and 
according  to  its  nature  the  defendant's  field  of  volition 
and  decision  is  broad  or  narrow.  But  whether  the  defen- 
dant executes  an  express  order,  or  his  action  is  the 
immediate  result  of  a  decision  made  under  general  or- 
ders or  regulations,  he  must,  in  order  to  escape  an  ad- 
verse judgment,  be  able  to  show  that  the  authority 
within  whose  protecting  field  he  acted  was  sanctioned  by 

'  Cunningham  v.  Railroad  Co.,  109  U.  S.  446;  Stanley  v.  Schwalby,  147 
U.  S.  508,  13  Sup.  Ct.  Rep.  418. 

'  Meigs  V.  McClung,  9  Cr.  iii;  Wilcox  v.  Jackson,  13  Pet.  498;  see  U.  S. 
V.  Lee,  106  U.  S.  196. 


I30  THE  ARMY  AND  THE  LAW 

law.  Apt  illustration  is  afforded  by  Little  v.  Barreme.^ 
There  an  officer,  acting  under  Presidential  order,  seized 
an  American  vessel  sailing  from  a  French  port,  and  was 
cast  in  damages,  because  the  court  held  that  that  order 
was  not  justified  by  any  executive  power  confided  by 
the  Constitution.  That  case  settled  the  law,  at  least 
with  us,  that  illegal  instructions  cannot  change  the 
nature  of  the  transaction  or  legalize  an  act  which,  with- 
out those  instructions,  would  have  been  a  plain  tres- 
pass. Chief  Justice  Marshall's  first  bias  was,  as  he  said 
"in  favor  of  the  opinion  that  though  the  instructions  of 
the  Executive  could  not  give  a  right,  they  might  yet 
excuse  from  damages,"  but  he  yielded  that  preposses- 
sion in  favor  of  the  rule  above  stated.  On  the  authority 
of  such  decisions,  we  may  take  it  that  "whatever  may  be 
the  rule  in  time  of  war  and  in  the  presence  of  actual 
hostilities,  military  officers  can  no  more  protect  them- 
selves than  civilians  in  time  of  peace,  by  orders  eman- 
ating from  a  source  which  is  itself  without  authority."^ 

8  2  Cr.  170. 

»  Bates  V.  Clark,  95  U.  S.  204,  209.  In  Dinsman  v.  Wilkes,  infra,  the 
Supreme  Court  refers  with  approval  to  the  unreported  case  of  Captain 
Gambler,  mentioned  by  Lord  Mansfield  in  Mostyn  v.  Fabrigas,  Cowp.  161. 
The  entire  language  of  Lord  Mansfield,  as  used  in  that  connection,  does  not 
have  much  weight:  "I  remember  one,  I  think  it  was  an  action  brought 
against  Captain  Gambler,  who,  by  order  of  Admiral  Boscawen,  had  pulled 
down  the  house  of  some  sutlers  who  supplied  the  navy  and  sailors  with  spirit- 
uous liquors;  and  whether  the  act  was  right  or  wrong,  it  was  certainly  done 
with  a  good  intention  on  the  part  of  the  admiral,  for  the  health  of  the  sailors 
was  affected  by  frequenting  them.  They  were  pulled  down:  the  captain  was 
inattentive  enough  to  bring  the  sutler  over  in  his  own  ship,  who  would  never 
have  got  to  England  otherwise;  and  as  soon  as  he  came  here  he  was  advised 
that  he  should  bring  an  action  against  the  captain.  He  brought  his  action, 
and  one  of  the  counts  in  the  declaration  was  for  pulling  down  the  houses. 
The  objection  was  taken  to  the  count  for  pulling  down  the  houses;  and  the 
case  of  Skinner  and  the  East  India  Company  was  cited  in  support  of  the 
objection.    On  the  other  side,  they  produced  from  a  manuscript  note  a  case 


THE  SOLDIER  AND  CIVILIAN  IN  PEACE         131 

No  different  in  principle  is  the  rule  which  applies  to 
the  officer  who  acts  under  general  authority  involving  a 
power  of  decision.  So  long  as  he  can  point  to  lawful 
authority  outlining  the  field  of  jurisdiction,  within 
which  his  decision  is  made,  he  is  safe  on  any  decision 
made  in  good  faith,  even  though  his  decision  on  the 
facts  presented  to  him  may  be  wrong.  Just  as  with  the 
case  of  a  court  martial  or  the  action  of  a  superior  with 
respect  to  an  inferior  in  the  service,  so  it  is  with  respect 
to  the  officer's  decision  insofar  as  it  affects  a  civilian. 
The  only  question  is  whether  the  decision  is  made  on  a 
question  which  it  comes  within  the  defendant's  jurisdic- 
tion to  decide.  In  any  such  case  as  that  he  acts  in  a 
quasi- judicial  capacity,  and  the  common  law  then  gives 
him  the  benefit  of  the  same  rule  that  it  applies  to  anyone 
else  who  is  rightfully  vested  with  a  power  of  decision. 
The  officer  in  such  a  case  is  not  liable  in  damages  for 
the  result  of  his  decision,  even  though  it  might 
have  been  wrong,  because  with  the  power  of  decision 

before  Lord  Chief  Justice  Eyre,  where  he  overruled  the  objection;  and  I  over- 
ruled the  objection  upon  this  principle,  namely,  that  the  reparation  here  was 
personal,  and  for  damages,  and  that  otherwise  there  would  be  a  failure  of 
justice;  for  it  was  upon  the  coast  of  Nova  Scotia,  where  there  were  no 
regular  courts  of  judicature;  but  if  there  had  been.  Captain  Gambler  might 
never  go  there  again;  and  therefore  the  reason  of  locality  in  such  an  action  in 
England  did  not  hold.  I  quoted  a  case  of  an  injury  of  that  sort  in  the  East 
Indies,  where  even  in  a  court  of  Equity  Lord  Hardwicke  had  directed  satis- 
faction to  be  made  in  damages:  that  case  before  Lord  Hardwicke  was  not 
much  contested,  but  this  case  before  me  was  fully  and  seriously  argued,  and  a 
thousand  pounds  damages  given  against  Captain  Gambler.  I  do  not  quote 
this  for  the  authority  of  my  opinion,  because  that  opinion  is  very  likely  to  be 
erroneous;  but  I  quote  it  for  this  reason — a  thousand  pounds  damages  and 
the  costs  were  a  considerable  sum.  As  the  captain  had  acted  by  the  orders  of 
Admiral  Boscawen,  the  representatives  of  the  admiral  defended  the  cause, 
and  paid  the  damages  and  costs  recovered.  The  case  was  favorable;  for 
what  the  admiral  did  was  certainly  well  intended ;  and  yet  there  was  no  mo- 
tion for  a  new  trial." 


132  THE  ARMY  AND  THE  LAW 

goes,  according  to  the  common  law,  immunity  from  the 
consequences  of  the  decision ;  the  common  law  taking  the 
homely  view  that,  in  the  very  nature  of  things,  a  power 
of  decision  must  carry  with  it  immunity  from  its  conse- 
quences, so  long  as  the  quasi- judicial  functionary  uses 
his  judgment  in  good  faith.  An  officer  vested  with  such 
a  power  of  choice  is,  in  the  language  of  the  Supreme 
Court,  at  least  to  be  considered  as  "the  expert  on  the 
spot,"  and  while  he  may  be  called  upon  later  in  court  to 
justify  his  conduct,  still  "great  weight  is  to  be  given  to 
his  determination  and  the  matter  is  to  be  judged  on  the 
facts  as  they  appeared  then,  and  not  merely  in  the  light 
of  the  event."  1° 

Whether  an  officer  is  so  vested  isof  course  a  question  of 
law.  Thus  in  Dinsman  z;.  Wilkes, ^^  which  we  previously 
considered,  it  was  held  that  the  captain  of  a  war 
vessel  was  vested  with  such  quasi- judicial  power  in 
the  case  of  a  seaman  who  claimed  that  his  term  of  en- 
listment had  expired,  the  vessel  being  then  in  foreign 
parts.  The  seaman  there  had  previously  the  special 
status  of  a  member  of  the  military  force,  and  by  his  very 
assumption  of  that  status  had  submitted  himself  to  the 
judgment  of  just  such  a  quasi- judicial  tribunal. 

And  whenever  the  common  law  finds  an  officer  vested 
with  such  a  power  of  choice,  then  his  subordinate  who 
acts  under  his  direction  is  protected,  even  though  that 
direction  may  be  wrong.  He  is  exactly  in  the  position  of 
any  other  ministerial  officer  of  a  court  with  limited 
jurisdiction  who  executes  the  court's  mandate;  he  is 
protected  so  long  as  the  order  is  fair  on  its  face.^^   Thus  a 

1°  Moyer  v.  Peabody,  212  U.  S.  78,  29  Sup.  Ct.  Rep.  235. 

"  12  How.  290. 

"  McCall  V.  McDowell,  i  Abb.  U.  S.  212,  Fed.  Cas.  8673. 


THE  SOLDIER  AND  CIVILIAN  IN  PEACE         133 

functionary  who  executes  the  mandate  of  the  court 
martial  is  protected  by  its  process,  even  though  the 
court  martial  made  a  wrong  decision,  so  long  as  it 
appears  on  the  face  of  the  process  that  the  court  has 
jurisdiction.^^  Such  a  case,  therefore,  is  to  be  dis- 
tinguished from  Ex  parte  Field  ^^  where  the  refusal  of  a 
jailor  to  obey  the  habeas  corpus  issued  for  a  military 
prisoner  was  held  to  be  in  contempt  of  court,  although 
the  refusal  was  pursuant  to  orders  of  the  Secretary  of 
War.  As  the  Court  considered,  the  Secretary  of  War 
not  being  able  to  point  to  any  statute  or  proclamation 
authorizing  his  action,  his  subordinate  naturally  could 
not  do  it  either. 

But  if  the  officer,  thus  possessing  a  field  of  jurisdic- 
tion, takes  a  course  which  is  entirely  outside  of  the 
jurisdiction  conferred  upon  him  by  general  orders  or 
regulations,  then  he  is  not  within  the  protection  of  the 
doctrine  applicable  to  a  quasi- judicial  officer.  It  is  on 
this  point  that  such  a  case  as  Bates  v,  Clark, ^^  and  the 
more  famous  case  of  Mitchell  v.  Harmony  ^^  turn.  In 
the  first  case  the  defendant,  an  army  captain,  seized 
some  whiskey,  supposing  it  to  be  destined  for  an  Indian 
country,  but  as  the  Indians  had  recently  been  removed 
from  the  reservation  in  question,  it  was  not,  under  the 
statute,  Indian  country.  It  was  held  that  the  defendant 
was  liable  in  an  action  for  the  value  of  this  whiskey,  on 
the  same  basis  as  any  other  case  of  conversion. 

In  Mitchell  v.  Harmony,  as  subsequently  stated  by 

*»  Savacool  v.  Boughton,  5  Wend.  170,  overruling  Smith  v.  Shaw,  12  Johns. 
257;  see  also  Chegaray  v.  Jenkins,  5  N.  Y.  376. 
"  5  Blatch.  63,  Fed.  Gas.  4761. 
"  Supra. 
^8  13  How.  137. 


134  THE  ARMY  AND  THE  LAW 

Mr.  Justice  Field  ^^  "the  property  of  the  plaintiff  had 
been  seized  by  an  officer  of  the  army  of  the  United 
States,  upon  the  beHef  that  he  was  unlawfully  engaged 
in  trading  with  the  enemy.  It  turned  out  that  he  had 
been  permitted  by  the  executive  department  of  the 
Government  to  trade  with  the  inhabitants  of  neighbor- 
ing provinces  of  Mexico  which  were  in  possession  of  the 
military  authorities  of  the  United  States.  In  an  action 
for  trespass  for  seizing  the  property,  the  defendant, 
among  other  reasons,  justified  the  seizure  on  the  ground 
that  he  acted  in  obedience  to  the  order  of  his  command- 
ing officer,  and  therefore  was  not  liable."  The  Court, 
however,  held  him  liable,  adding  "that  the  defendant 
did  not  stand  in  the  situation  of  an  officer  who  merely 
obeys  the  command  of  his  superior,  if  it  appeared  that 
he  advised  the  order,  and  volunteered  to  execute  it, 
when  that  duty  more  properly  belonged  to  an  officer  of 
an  inferior  grade."  If  the  defendant  in  that  case  had 
merely  obeyed  an  order  from  a  superior  officer  which 
appeared  fair  on  its  face,  the  fact  not  being  disclosed  to 
him  that  the  plaintiff  had  a  Presidential  license,  then 
the  defendant  would  have  been  protected  as  a  minis- 
terial officer  acting  under  an  order  from  a  superior 
which  showed  jurisdiction  on  its  face.  But  the  de- 
fendant assumed  a  higher  position  of  decision  in  the 
matter.  That  being  so,  it  was  upon  him  to  justify  the 
jurisdiction  which  he  thus  assumed;  and  the  fact  of  the 
Presidential  license  depriving  him  of  jurisdiction,  he 
was  left  as  utterly  without  defense  as  was  the  defendant 
in  Bates  v,  Clark. ^^ 

"  Beckwith  v.  Bean,  98  U.  S.  266. 
"  Supra. 


THE  SOLDIER  AND  CIVILIAN  IN  PEACE         135 

This  principle  is  by  no  means  confined,  in  its  application, 
to  army  officers.  The  civilian,  in  his  daily  life,  is  subject  to 
the  same  obligation  and  whoever  disregards  it  must  take 
the  consequences.  Strikingly  is  this  shown  in  Phelps  v, 
Aldujo.^^  There  the  plaintiff  sued  on  a  policy  of  marine 
insurance,  alleging  loss  by  capture  of  his  vessel  by  the 
enemy,  to  which  a  plea  was  interposed  that  the  vessel 
had  deviated  from  the  insured  voyage,  thus  violating 
the  implied  warranty  against  deviation.  It  appeared 
that  while  the  vessel,  being  under  convoy,  lay  in  a  port 
of  call,  the  commander  of  the  convoying  cruiser,  seeing 
a  strange  sail  in  the  offing,  directed  the  master  of  the 
plaintiff's  vessel  to  go  out  and  examine  the  stranger. 
Obedience  to  this  order  resulted  in  the  capture  of  the 
plaintiff's  ship,  for  the  stranger  turned  out  to  be  a 
French  privateer.  The  court  held  that  the  plaintiff 
could  not  recover,  because  his  ship,  by  going  out  to 
examine  the  strange  craft,  was  guilty  of  deviation  from 
the  voyage,  and  that  this  deviation  was  not  excusable 
as  done  under  lawful  constraint,  because  the  commander 
of  the  convoying  vessel  had  no  authority  to  give  the 
order  which  he  did.  Thus  the  hard  consequences  of  a 
commander's  unauthorized  order  fell  entirely  on  the 
civilian  whose  agent  had  obeyed  it. 

It  is  of  interest  to  note,  however,  that  even  in  such 
cases  as  that,  the  common  law  recognizes,  so  far  as  it 
may,  the  pressure  of  obligation  which  is  the  constant 
companion  of  the  soldier.  It  cannot  withhold  judgment 
against  him,  but,  the  substantive  right  being  settled,  it 
can  control  the  quantum  of  damages.  Although  an 
officer's  acts,  failing  of  any  justification  of  the  kind 

"  2  Camp.  N.  P.  350. 


136         THE  ARMY  AND  THE  LAW 

above  outlined,  constitute  an  actionable  tort,  he  may 
yet  avail  himself  of  the  circumstances  which  impelled, 
though  they  did  not  justify,  his  decision,  by  way  of  miti- 
gation of  damages.  Such  circumstances,  say  our  courts, 
are  proper  "to  rebut  the  presumption  of  malice  which 
might  arise  from  the  simple  arrest  and  imprisonment, 
unaccompanied  by  any  explanation  of  the  reason  there- 
for." 2°  To  this  extent  does  the  law  repel  Professor  Dicey 's 
rather  glib  statement  that  a  soldier  may  "be  liable  to  be 
shot  by  a  court  martial  if  he  disobeys  an  order,  and  to  be 
hanged  by  a  judge  and  jury  if  he  obeys  it."^^ 

Hardships,  however,  have  doubtless  occurred,  and 
may  occur  again.  Indemnity  acts,  of  the  kind  herein- 
after discussed,  are  a  sort  of  antidote;  but  the  infirmi- 
ties of  that  sort  of  remedy  are  also  to  be  reckoned  with. 
The  best  cure  is  to  be  found  in  an  enlightenment  of  the 
courts,  an  enlightenment  which  will  enable  them  to  see 
more  clearly  the  bounds  of  discretion  which  may 
attend  the  particular  duty  cast  upon  the  defendant. 
Mitchell  V.  Harmony  was  rightly  decided  if  the  de- 
fendant's powers  forbade  him  to  touch  the  goods  of 
one  travelling  under  a  license  to  trade  with  the  enemy. 
But  courts  should  recognize  that  the  exigencies  of  a 
march  in  time  of  war  should  permit  of  any  camp  follower 
being  turned  back  if,  in  the  judgment  of  the  commander, 
his  presence  is  harmful.  The  same  court  could  thus 
decide  today,  without  violating  the  real  principle  on 
which  rests  Mitchell  v.  Harmony. 

It  is  of  course  possible  to  have  a  case  where  the 
remedy  which  the  plaintiff  seeks  does  not  involve  hold- 

'°  Beckwith  v.  Bean,  supra;  McCall  v.  McDowell,  {supra). 
•*  Dicey,  Law  of  the  Constitution,  8th  ed.  299. 


THE  SOLDIER  AND  CIVILIAN  IN  PEACE         137 

ing  an  officer  at  all.  If  an  officer  remains  in  possession 
of  property  taken  from  the  plaintiff,  the  plaintiff  may 
bring  a  possessory  action  which,  resulting  in  the  restora- 
tion of  the  property,  will  terminate  the  matter.  Such 
cases  are  Meigs  v.  McClung  ^^  and  Wilcox  v.  Jackson,^^ 
in  each  of  which  the  plaintiff  brought  ejectment  for 
land  which  the  Government  had  occupied  as  an  army 
post. 

On  the  other  hand,  the  plaintiff  may  seek  against  the 
officer  relief  which  is  highly  improper  in  any  action, 
other  than  one  against  the  United  States  itself.  Such  a 
case  arises  where  the  officer,  in  behalf  of  the  Govern- 
ment, is  using  apparatus  which  infringes  a  patent  owned 
by  the  plaintiff.  The  usual  remedy  which  an  injured 
patentee  seeks  is  not  damages  against  the  infringer,  but 
equitable  relief  in  the  shape  of  an  injunction  to  prevent 
the  continuance  of  the  use,  and  an  accounting  for  the 
profits  which  the  wrong-doer,  up  to  that  time,  might 
have  derived  from  the  use  of  the  infringing  apparatus. 
The  courts  long  ago  held  that  a  suit  should  not  succeed 
against  an  officer  who  has  used  the  apparatus  only  in 
the  government's  behalf.  Only  the  government  has  de- 
rived any  profits,  and  it  cannot  be  sued ;  nor  should  an 
injunction  be  granted  whose  effect  impedes  a  govern- 
ment activity.  The  officer's  possession  being  solely  for 
governmental  use,  the  suit  in  effect  is  against  the  gov- 
ernment, and,  therefore,  it  cannot  be  maintained.  That 
proposition  was  finally  decided  by  the  Supreme  Court, 
in  Belknapp  v,  Schild.^'*    A  decision  similar  in  principle 

229  Cr.  III. 

28 13  Pet.  498. 

2<  161  U.  S.  10,  16  Sup.  Ct.  Rep.  443. 


138  THE  ARMY  AND  THE  LAW 

was  rendered  in  England,  where  the  principal  for  whom 
the  subordinate  was  acting  was  a  foreign  sovereign, ^^ 
and  hence  also  immune  from  suit.  The  point  of  both 
decisions  was  the  same,  that  an  injunction  would  be  of 
no  avail  because  the  real  offender  was  the  government, 
and  an  accounting  for  profits  would  be  unavailing,  be- 
cause the  governmental  principal  had  received  the 
profits,  and  not  the  ofhcer  actually  using  the  apparatus. 
The  whole  question  was  rendered  academic  by  recent 
legislation  allowing  the  injured  patentee  to  sue  the 
government,  not  for  an  injunction  it  is  true,  but  for 
profits,  in  the  Court  of  Claims.  This  gives  the  govern- 
ment a  roundabout  method,  at  ohce  of  appropriating 
the  use  of  a  patent  by  way  of  eminent  domain,  and  of 
compensating  the  owner  for  such  use.  It  follows  that 
the  ofificer  or  agent  through  whom  the  government  acts 
is  not  liable  to  the  owner  even  in  an  action  for  damages, 
to  say  nothing  of  an  accounting.^^ 

That  leads  us  to  the  general  question,  if  the  ofhcer 
acted  under  due  authority  of  law,  when,  if  ever,  can  the 
plaintiff  turn  for  redress  to  the  government  which  au- 
thorized the  act? 

Whatever  may  be  the  true  history  of  it — and  those 
who  may  be  interested  are  referred  to  the  opinions  both 
of  the  majority  and  minority  in  U.  S.  v,  Lee  ^^  and  to  the 
opinions  rendered  in  a  recent  English  case  ^^ — it  is  the 
fact  that  never  has  the  British  Crown  allowed  a  subject 
to  sue  it  by  means  of  a  petition  of  right,  for  redress  for 

^  Vavasseur  v.  Krupp,  9  Ch.  Div.  351. 

26 See  Marconi  Wireless  Co.  v.  Simon,  38  Sup.  Ct.  Rep.  275;  Cramp  v.  Int. 
Curtis  Co.  id.  271. 
"  106  U.  S.  196. 
"  Re  Petition  of  Right  (1915)  3  K.  B.  649. 


THE  SOLDIER  AND  CIVILIAN  IN  PEACE        139 

any  mere  damage,  nor  outside  of  the  legislation  relating 
to  patents,  above  mentioned,  has  our  Government,  in 
any  of  its  statutes  relating  to  the  Court  of  Claims,  or  the 
District  Courts  under  the  Tucker  Act,  authorized  a 
citizen  so  to  sue  it.^^  In  any  such  case  the  plaintiff 
must  go  remediless.  It  is  only  where  an  authorized  act 
has  resulted  in  the  enrichment  of  the  government  by 
the  taking  of  a  plaintiff's  property,  or  perhaps  even  its 
use,  that  the  plaintiff  can  have  any  redress  against  the 
government.^^  In  any  other  case  of  authorized  dam- 
age, the  plaintiff  can  sue  neither  the  officer  who  acted 
under  authority,  nor  the  government.^^ 

A  situation  of  more  difficulty  may  arise  where  the 
government  undertakes  to  ratify  a  wrong  which  in  the 
beginning  was  unauthorized.  Parenthetically,  we  must 
note  that  this  intention  to  ratify  should  appear,  because 
a  mere  subsequent  authorization  cannot  operate  as  a 
ratification.^^  If  the  government  were  in  like  case  with 
a  human  principal,  its  ratification  of  a  tort  could  not 
terminate  its  servant's  liability;  it  would  simply  add  to 
the  number  of  parties  who  would  be  liable  for  the  tort. 
That,  at  least,  seems  to  be  the  modern  view,  whatever 
might  have  been  the  original  state  of  the  law.^^  But  the 
government's  ratification,  if  it  is  to  have  any  effect  at 
all,  must  make  the  act  no  tort,  because,  if  the  ratifica- 
tion is  valid,  it  goes  back  to  the  date  of  the  act,  and  then 

"  U.  S.  V.  Lee,  supra;  U.  S.  v.  Russell,  13  Wall.  623;  Ribas  y  Hijo  v. 
U.  S.,  194  U.  S.  310;  24  Sup.  Ct.  Rep.  727;  Herrara  v.  U.  S.,  222  U.  S.  558; 
32  Sup.  Ct.  Rep.  179;  Re  Petition  of  Right,  supra. 

^  U.  S.  V.  Russell,  supra  Re  Petition  of  Right,  (supra). 

M  McCall  V.  McDowell,  i  Abb.  U.  S.  212;  Fed.  Gas.  8673;  O'Reilly  v. 
Brooke,  209  U.  S.  45;  28  Sup.  Ct.  Rep.  439;   Buron  v.  Denman,  2  Exch.  167. 

»2  Ex  parte  Field,  5  Blatch.  63;  Fed.  Gas.  4761. 

•3  See  opinion  of  Holmes,  J.,  in  O'Reilly  v.  Brooke,  supra. 


I40  THE  ARMY  AND  THE  LAW 

it  would  have  the  effect  of  making  the  act  legal  which 
previously  had  been  illegal. 

Obviously,  in  a  case  of  ratification  it  would  be  just  as 
incumbent  on  the  defendant  to  plead  the  ratification  as 
it  would  be  incumbent  on  a  defendant,  acting  under 
prior  authority,  to  show  it.  What  the  defendant  should 
never  overlook  is  that,  outside  the  domain  of  authority, 
he  has  committed  a  tort.  And  it  is  for  him  to  show 
authority,  whether  previously  existing  or  flowing  from 
ratification.  If  he  does  not  show  this,  he  cannot  blame 
the  court  for  proceeding  to  judgment  against  him. 
Viewed  in  this  light  the  case  of  Bean  v.  Beckwith,^* 
which  some  seem  to  have  thought  open  to  criticism  as 
being  one  of  those  cases  where  the  military  officer  is 
hanged  by  judge  and  jury,  has  no  such  bad  effect.  As 
the  Supreme  Court  in  a  later  case  pointed  out,^^  the 
defendant's  plea  was  insufficient.  In  other  words 
"whether  there  was  in  that  case  a  special  order  of  the 
President  to  the  provost  marshal,  or  whether  he  as- 
sumed to  arrest  and  imprison  the  plaintiff  under  some 
proclamation  or  general  order,  did  not  appear  by  the 
plea,  and  as  it  was  a  case  of  arrest  and  imprisonment, 
this  Court  held  that  the  authority  of  the  defendants  to 
make  it  should  be  specifically  set  forth."  ^^  Even  a  ver- 
bal order  in  any  such  case  would  be  sufficient.^^ 

The  Indemnity  Acts  of  civil  war  times  did  not  go  as 
far,  by  way  of  ratification,  as  the  statute  which  pro- 
tected General  Brooke.^^   At  the  time  that  he  abolished 

»*  i8  Wall.  510. 

36  Mitchell  V.  Clark,  no  U.  S.  635. 

'•  Mitchell  V.  Clark,  supra. 

»7  Mitchell  V.  Clark,  supra. 

"  O'Reilly  v.  Brooke,  supra,  discussed  in  Ch.  VII. 


THE  SOLDIER  AND  CIVILIAN  IN  PEACE        141 

the  plaintiff's  office  of  Hereditary  Slaughterer  of  Cattle, 
General  Brooke  had  not  even  color  of  authority,  unless 
it  was  such  authority  as  flowed  from  the  law  of  military 
occupation.  That  was  either  sufficient  or  it  was  not, 
but  as  the  Supreme  Court's  decision  did  not  turn  on 
that  at  all,  we  may  take  it  as  though  the  general  acted 
entirely  without  color  of  authority.  He  was  thus  left 
to  the  Piatt  Amendment,  which  ratified  all  acts  done 
during  the  military  occupation.  The  Indemnity  Acts 
of  civil  war  times,  on  the  contrary,  ratified  only  such 
acts  as  were  done  under  orders,  leaving  the  officer  who 
constituted  the  source  of  the  order  helpless  in  the  ab- 
sence of  being  able  to  point  to  some  order  or  regulation 
ahead  of  him.  This  is  illustrated  by  the  decision  in 
McCall  V.  McDowelb^  General  McDowell,  Depart- 
ment Commander  at  San  Francisco,  ordered  the  provost 
marshal  to  arrest  all  persons  expressing  sympathy  with 
the  assassination  of  President  Lincoln,  as  "virtually  ac- 
cessories after  the  fact."  There  was  no  state  of  martial 
law.  Deady,  J.,  held  that  General  McDowell  was  liable 
because  the  Indemnity  Acts  did  not  apply,  he  having 
not  issued  his  order  pursuant  to  any  Executive  author- 
ity or  order  of  the  President  or  Secretary  of  War;  but 
that  the  provost  marshal  was  not  liable  because  he 
acted  under  the  orders  of  General  McDowell,  his 
superior,  and  that  the  order  was  not  "palpably  illegal." 
This  last  qualification  was  wholly  unnecessary,  because 
the  Acts  were  broad  enough  to  cover  the  case  of  anyone 
acting  under  orders,  whether  the  orders  were  palpably 
illegal  or  not. 

^^Supra.    To  the  same  effect,  see  Milligan  v.  Hovey,  3  Biss.  13,  Fed.  Case 
9605. 


IX 

RELATION  OF  SOLDIER  TO  CIVILIAN 
IN  TIME  OF  WAR 

The  army's  primary  function,  as  previously  said,  is 
the  defense  of  the  nation  from  the  public  enemy.  That 
defense  can  be  expressed  only  in  terms  of  physical 
force;  there  is  no  other  medium.  The  qualities  of  the 
great  commander  may  reach  the  highest  points  of  in- 
tellectual endeavor,  but  they  are  exerted  in  the  assem- 
bly and  direction  of  force.  No  war  has  ever  been  won 
by  means  of  anything  else;  words  have  never  been  a 
substitute  for  armed  endeavor,  once  resort  is  made  to 
belligerency,  from  the  days  of  Byzantium  even  to  our 
own.  When  war  is  declared,  the  army  stands  ready  to 
deliver  the  necessary  blows;  it  is  lawful  for  it  to  do  so, 
and  the  common  law  recognizes  the  fact.  The  army's 
sphere  of  lawful  action,  therefore,  automatically  en- 
larges with  the  coming  of  the  state  of  war. 

As  an  immediate  consequence — immediate  in  point  of 
law,  however  delayed  by  circumstances  it  may  be  in 
application — the  orb  of  the  citizen's  right  contracts. 
Things  that  the  soldier  might  not  lawfully  do  in  time  of 
peace,  he  may  conceivably  do  now  with  lawful  immu- 
nity; and  conversely,  things  of  which  the  citizen  might 
rightfully  complain  in  the  days  of  peace,  will  not  serve  as 
the  subject  matter  of  a  suit  when  the  nation  is  at  war. 
Nor  is  this  theorem  limited  to  direct  acts  of  the  army 
and  those  of  its  instant  direction.    With  a  force  equal  in 


THE  SOLDIER  AND  CIVILIAN  IN  WAR  143 

the  abstract,  but  much  more  apparent  to  the  average 
observer,  it  applies  to  the  constitutional  restraints  of 
government.  In  support  of  the  war,  and,  therefore,  of 
the  army,  the  government's  constitutional  powers  take 
on  a  wider  range.  The  "war  powers"  of  the  executive, 
the  wider  scope  of  permissible  legislation  given  Con- 
gress, may  properly  reach  far  beyond  the  landmarks 
which  the  Constitution  fixes  for  our  journey  through 
the  days  of  peace. 

Of  this  proposition  in  the  abstract,  there  can  be  no 
doubt.  Proofs  of  its  acceptance,  so  far  as  governmental 
and  legislative  action  is  concerned,  lie  all  about  us  at 
this  writing.  As  war  measures  now  in  force,  we  have  a 
government  bureau  under  the  Act  of  August  10,  191 7, 
regulating  and  directing  dealings  in  and  use  of  grain  and 
meat.  Under  the  same  Act  we  find  another  bureau 
regulating  the  supply  and  use  of  fuel.  Under  the  Army 
Appropriations  Act  of  1916,^  we  have  the  government 
taking  over  the  railway  systems  of  the  United  States; 
this  taking  having  been  effected  by  the  President's 
proclamation  of  December  26,  191 7.  The  Espionage 
Act  of  June  12,  191 7,  and  the  Trading  with  the  Enemy 
Act  of  October  6,  191 7,  combine  in  their  effect  of  giving 
the  President  complete  control  of  all  matters  of  export 
and  import;  to  say  nothing  of  the  increased  powers 
which  the  Postmaster  General  now  enjoys  by  virtue  of 
these  same  enactments.  No  one  has  claimed  that  these 
war  measures  are  unconstitutional ;  all  should  approve 
them  so  far  as  they  subserve  their  one  object,  the 
successful  conduct  of  the  war.  Yet  they  outdo  any- 
thing in  our  history;  no  previous  war  was  ever  fought 

^  Act  August  29,  1916,  39  Stat.  659. 


144         THE  ARMY  AND  THE  LAW 

with  all  grain,  meat  and  fuel  under  commandeer,  to 
mention  but  a  few  features  of  our  legislation.  England 
has  proceeded  to  like  extremes;  England,  the  home  of 
the  individualist,  has  in  some  points  outstripped  us. 

The  principle  which  justifies  these  things  is  as  old  as 
the  common  law;  older  than  written  constitutions,  it, 
therefore,  informs  them.  Indeed  the  principle  is  older 
than  the  common  law;  like  the  jus  naturae  of  the 
medievalists,  it  pervades  every  system  of  law.  That 
principle  is  that  the  rights  of  the  individual  must  yield 
to  those  of  the  State  in  the  time  of  the  Staters  peril  from 
the  public  enemy.  This  amounts  to  no  deification  of 
the  State,  and  nothing  of  the  Prussian  is  in  it;  for  the 
State's  right,  in  time  of  her  peril,  should  be  supreme, 
and  the  acts  of  her  agents,  in  carrying  out  her  com- 
mands, lawful ;  else  we  would  have  no  State  at  all.  "In 
these  cases,"  says  our  supreme  court,  "the  common  law 
adopts  the  principles  of  the  natural  law,  and  finds  the  right 
and  the  justification  in  the  same  imperative  necessity."  ^ 

This  proposition  finds  ample  room  in  Coke's  reports 
— that  fount  of  the  common  law.  In  the  Case  of  the 
Prerogative^  it  is  said:  "For  the  commonwealth  a  man 
shall  suffer  damage,  as  for  saving  a  city  or  town  a  house 
shall  be  plucked  down  if  the  next  one  be  on  fire."  It  is 
therefore  undoubted  law  today,  that  no  action  lies  for 
such  an  act  as  just  described,  when  done  by  one  acting 
under  lawful  authority.^  In  another  case  in  the  same 
volume  of  Coke's  reports,^  reference  is  made  to  the  same 
doctrine. 

2  Bowditch  V.  Boston,  loi  U.  S.  i6. 

'  12  Co.  Rep.  13. 

*  Bowditch  V.  Boston,  supra. 

'  Mouse's  Case,  12  Co.  Rep.  62. 


THE  SOLDIER  AND  CIVILIAN  IN  WAR  145 

This  principle,  according  to  the  same  unquestioned 
authority,  applies  in  time  of  war.  ^When  enemies," 
says  Coke,  "come  against  the  realm  to  the  seacoast,  it  is 
lawful  to  come  upon  my  land  adjoining  to  the  same 
coast,  to  make  trenches  or  bulwarks  for  the  defence  of 
the  realm,  for  every  subject  hath  benefit  by  it.  And, 
therefore,  by  the  common  law,  every  man  may  come 
upon  my  land  for  the  defence  of  the  realm,  as  appears  8 
Edward  IV  23.  And  in  such  case  on  such  extremity 
they  may  dig  for  gravel,  for  the  making  of  bulwarks; 
for  this  is  for  the  public,  and  everyone  hath  benefit  by  it ; 
but  after  the  danger  is  over,  the  trenches  and  bulwarks 
ought  to  be  removed,  so  that  the  owner  shall  not  have 
prejudice  in  his  inheritance."  ^  At  a  later  date  this  prop- 
osition was  repeated  as  undoubtedly  of  sound  law:  a 
tort,  when  done  for  the  public  good  in  matter  of  emer- 
gency, is  excusable,  "as  in  time  of  war  a  man  may  justify 
making  fortifications  on  another  man's  land  without 
license."^  Counsel  for  the  defendant,  in  the  famous 
case  of  ship-money,  were  forced  to  admit  that  their 
contention  did  not  affect  the  soundness  of  this  propo 
sition.^ 

The  same  right,  in  case  of  emergency,  extends  to  the 
property  of  neutrals  which  may  be  found  within  the 
country.  But  the  limits  of  this  rule  of  angary,  as  ex- 
tended by  the  United  States  Government  during  the 
Civil  War,  overlap  so  much  the  bounds  of  international 
law  as  to  place  the  whole  subject  outside  the  proper 

•  Case  of  Prerogative,  12  Co.  Rep.  13. 
'  I  Dyer  36  6. 

8  Rex  V.  Hampden,  3  How.  St.  Tr.  826;  See  also  18  Law  Quarterly  Review, 
135-136.  155. 


146  THE  ARMY  AND  THE  LAW 

domain  of  this  book;^  the  topic  of  domestic  requisition- 
ing, indeed,  being  brought  into  our  present  discussion 
more  by  way  of  illustration  than  as  a  principal  ob- 
jective. 

For  all  such  acts,  according  to  common  law  theory, 
neither  was  the  agent  of  the  State  liable — "a  thing  for 
the  commonwealth  a  man  may  do  without  being  liable 
to  an  action,"  ^°  but  the  State  itself  owed  no  duty  of 
compensation.  That  doctrine  has  persisted  in  England 
without  any  possible  line  of  distinction;^^  but  perhaps 
that  very  thing  induced  the  provision  in  our  national 
constitution  that  private  property  shall  not  be  taken 
for  public  use  without  compensation. ^^  This  makes  our 
courts  draw  a  distinction  between  the  mere  destruc- 
tion of  property  in  times  of  emergency,  and  its  use  or 
taking.  In  the  one  case  there  is  no  state  obligation  of 
payment  ;^^  but  where  the  government  has  used  or  ap- 
propriated the  thing  in  question,  then  an  implied  obli- 
gation, of  compensating  the  owner,  is  imposed  upon  the 
government.  ^"^ 

But  our  government,  however  just  the  debt  it  may 
owe,  is  not  suable  by  petition  of  right  as  is  the  English 
crown  ;^^  and  hence,  in  any  such  case  of  a  taking,  the 
owner  will  go  remediless  unless  Congress  appropriates 
funds  for  his  relief,  or  confers  jurisdiction  on  the  Court 

'See  The  Zamora  (1916),  2  A.  C.  77,  and  American  authorities  there 
discussed. 

"  Case  of  Prerogative,  supra. 

"  Re  a  petition  of  right  (1915)  3  K.  B.  649;  The  Zamora  (1916)  2  A.  C.  77. 

"  U.  S.  Constitution,  Fifth  Amendment. 

^'  Bowditch  V.  Boston,  supra. 

i<  U.  S.  V.  Russell.  13  Wall.  623;  Pugh  v.  U.  S.,  13  Wall.  633;  U.  S.  v. 
Kimball.  13  Wall.  636. 

^s  See  U.  S.  V.  Lee.  106  U.  S.  196;  Re  a  petition  of  right,  supra. 


THE  SOLDIER  AND  CIVILIAN  IN  WAR  147 

of  Claims  or  local  Federal  courts  to  hear  the  applica- 
tion.^^ The  English  courts,  on  the  contrary,  have 
jurisdiction  as  of  course,  of  all  applications,  by  way  of 
petition  of  right,  founded  on  debts  owing  by  govern- 
ment ;  but  they  hold  that  applications  of  the  class  now 
under  consideration  have  no  merit  at  common  law.^^ 
It  is  our  constitutional  provision  that  gives  them  merit 
with  us.  Yet,  because  such  cases  cannot  have  their  day 
in  court  without  leave  of  Congress,  the  ultimate  result 
is  the  same  in  both  countries.  For  property  taken  in  an 
emergency  there  is  no  payment  unless  government 
chooses  to  pay. 

The  above  considerations  make  it  clear  that  the 
validity  of  such  an  act  depends  upon  no  statute ;  rather 
it  springs  from  the  common  law.  The  English  courts, 
therefore,  consider  it  clear  that  the  right  partakes  of  the 
crown's  prerogative,  and  needs  no  act  of  Parliament  for 
its  sanction.  It  is  true  that  in  the  winter  of  1 803-1 804, 
when  Napoleon's  threats  of  invasion  w^ere  in  the  air, 
Parliament  enacted  two  statutes  ^^  which  gave  the 
crown  power  to  take  land  for  military  purposes,  on 
making  just  compensation.  But  as  Lord  Cozens-Hardy, 
M.  R.,  has  recently  shown  in  the  case  last  cited,  the  pre- 
amble of  these  statutes  fully  recognized  the  crown's 
power  to  take  the  land,  without  statute  and  without 
payment.  During  the  present  war,  the  crown  seized  a 
subject's  land  for  purposes  of  an  aviation  camp.  By 
dismissing  his  petition  of  right,  filed  to  obtain  compen- 
sation for  being  deprived  of  the  land,  the  English  courts 

"  It  is  noteworthy  that  Congress  excluded  such  cases  from  the  Court  of 
Claims'  jurisdiction  during  the  Civil  War.    See  U.  S.  v.  Russell,  supra. 
^''  Re  a.  petition  of  right,  supra. 
"  43  Geo.  Ill,  c.  55;  44  Geo.  Ill,  c.  95. 


148  THE  ARMY  AND  THE  LAW 

have  finally  made  it  clear  that,  in  their  view  of  the  com- 
mon law,  neither  is  a  statute  necessary  in  such  cases,  nor 
need  there  be  any  compensation.^^ 

Our  constitutional  provision  requires  compensation 
for  a  taking,  as  we  have  seen.  But  our  courts  seem  to 
agree  with  those  of  England  in  the  proposition  that  no 
statute  is  necessary  for  a  case  of  emergency.  The  gov- 
ernment's implied  contract  to  pay  the  owner  for  the 
property  taken  arises,  says  the  Supreme  Court,  only 
when  "an  extraordinary  and  unforeseen  emergency"  re- 
quires the  taking  of  the  property  at  once  by  the  com- 
mander.20  That  is  the  very  distinction  between  such 
cases  as  Mitchell  v.  Harmony,^!  heretofore  discussed,  on 
the  one  hand,  and  U.  S.  v,  Russell  ^^  on  the  other.  In 
Mitchell  V.  Harmony  the  commander  was  not  justified 
in  what  he  did,  because  no  situation  of  emergency  ex- 
isted ;  consequently  there  was  no  obligation  on  the  gov- 
ernment, and  he  remained  liable  as  for  a  trespass.  In 
U.  S.  V.  Russell,  on  the  contrary,  where  a  commander 
during  the  Civil  War  used  two  vessels  for  a  period,  it 
was  held  that  the  government  was  under  the  obligation 
of  payment,  so  of  course  the  commander  was  not  per- 
sonally liable. 

It  is,  then,  a  question  of  supreme  emergency.  Circum- 
stances of  that  character  justify  the  act  of  the  soldier, 
for  it  is  the  act  of  the  State.  The  nature  and  extent  of 
the  justifying  exigency  have  never  been  entirely  defined ; 
we  have  only  illustrations  such  as  are  afforded  by  the 
instances  already  mentioned.   There  are  of  course  others. 

"  jRe  a  petition  of  right,  supra. 

20  U.  S.  V.  Russell,  supra. 

21  13  How.  134;  See  Chapters  V  and  VIII. 
*2  Supra. 


THE  SOLDIER  AND  CIVILIAN  IN  WAR  149 

If  for  example,  the  citizen's  property  or  person  should 
be  situated  within  the  theater  of  active  military  opera- 
tions, there  can  be  no  doubt,  in  the  common  law  mind, 
that  they  are  subject  to  the  control  of  the  commander 
in  charge.  He  could  forcibly  remove  the  citizen's  person 
from  the  scene  of  arms;  he  could  do  the  like  with  the 
citizen's  property;  the  latter,  indeed, he  could  destroy  if 
in  his  judgment  such  a  course  would  best  subserve  his 
purposes  of  combat.  All  of  this  Coke  has  told  us  in  the 
passages  already  quoted;  but  if  more  were  needed,  it  is 
to  be  found  in  Ford  v.  Surget.^^  The  plaintiff,  a  resident 
of  the  Confederacy,  owned  cotton  whose  situation, 
as  the  Confederate  lines  fell  back,  was  brought  ever 
nearer  to  the  presence  of  the  hostile  Federal  troops. 
The  defendant,  the  local  Confederate  commander, 
finally  ordered  the  cotton  to  be  burned,  in  order  to 
prevent  its  falling  into  the  hands  of  the  Union  troops. 
For  this,  after  the  close  of  the  war,  he  was  sued  by 
the  plaintiff.  The  Supreme  Court  held  for  the  de- 
fendant. Considering  that  the  Confederacy  was 
de  facto  a  belligerent,  the  court  treated  the  suit  exactly 
as  if  a  resident  of  Gettysburg  had  sued  an  officer  of 
General  Meade's  army  for  destroying  a  Pennsylvania 
homestead  in  order  to  prevent  its  military  use  by  Gen- 
eral Lee's  men.  The  property  in  each  case,  being  in  the 
theater  of  operations,  was  at  the  commander's  disposal, 
and  for  no  act  of  his  with  respect  thereto  was  he  liable, 
so  long  as  it  was  done  in  good  faith. 

In  the  same  category  should  be  placed  the  situation 
which  arose  from  the  battle  of  New  Orleans.  On  De- 
cember 15,  1814,  General  Jackson  declared  martial  law 

»  93  U.  S.  594. 


150  THE  ARMY  AND  THE  LAW 

over  the  territory  ranging  from  four  miles  above  the 
city  to  four  miles  south  of  it.  The  battle  whose  happy 
issue  saved  the  city  from  capture,  was  fought  on  the 
eighth  of  the  next  month,  but  the  General  refused  to 
relax  his  control  until  official  advices  reached  him. 
Matters  being  thus  situated,  one  Lovallier  was  taken 
into  military  custody  for  seditious  language,  and  the 
civil  court  issued  a  writ  of  habeas  corpus  for  him.  Gen- 
eral Jackson^s  answer  was  to  arrest  the  judge.  Then 
official  news  of  peace  arrived,  and  martial  law  ceased. 
The  judge,  on  being  released,  fined  General  Jackson  for 
contempt,  and  the  fine  was  paid.  Later,  Congress 
passed  an  act  to  refund  to  the  General  the  amount  of 
the  fine.24 

From  one  point  of  view — the  other  being  discussed  in 
the  following  chapter — the  decision  of  the  Privy  Coun- 
cil in  Ex  parte  Marais  ^^  is  also  in  point.  There  the  peti- 
tioner, residing  within  thirty-five  miles  of  Cape  Town, 
was  arrested  and  held  for  a  military  court  on  a  charge  of 
sedition.  He  was  taken  to  a  place  three  hundred  miles 
distant  for  trial;  but  martial  law  had  been  proclaimed 
over  all  this  territory,  the  Boer  War  then  being  in  pro- 
gress. The  Privy  Council  held  that  the  prisoner  was  not 
entitled  to  release  by  way  of  habeas  corpus,  although 
the  civil  courts  were  open  in  the  affected  territory.  The 
court  considered  that  war  was  raging  over  the  entire 
section  and  that,  therefore,  martial  law  necessarily  pre- 
vailed, the  civil  courts  being  open  only  on  the  comman- 
der's sufferance. 

24  A  complete  history  of  this  case,  with  citations,  appears  in  the  arguments 
of  counsel  in  Exp.  Milligan,  4  Wall.  2. 
"  (1902)  A.  C.  109. 


THE  SOLDIER  AND  CIVILIAN  IN  WAR  151 

To  this  extent  then,  the  Supreme  Court  is  justified  in 
the  exception  which  it  makes  when,  speaking  of  the  rules 
applicable  in  times  of  peace  to  the  relation  of  soldier  and 
civilian,  it  pushes  to  one  side,  as  not  within  the  scope  of 
its  remarks,  the  "rule  in  time  of  war" — "whatever"  it 
may  be.^^  In  time  of  war,  let  us  repeat,  the  relation  of 
soldier  and  civilian  takes  on  an  entirely  different  color 
according  to  the  exigency  imposed  by  the  pressure  of 
the  conflict.  But,  beyond  the  demand  of  the  occasion, 
the  old  restraints  of  the  common  law  remain;  its  self 
abnegation  goes  just  that  far  and  no  further.  "It  is  an 
unbending  rule  of  law  that  the  exercise  of  military 
power,  where  the  rights  of  the  citizen  are  concerned, 
shall  never  be  pushed  beyond  what  the  exigency 
requires."  2^ 

Who  is  to  judge  of  that?  We  had  best  answer  that 
question  with  another.  Who  is  to  determine  whether 
a  case  is  within  the  jurisdiction  of  a  court  martial?  We 
have  already  gained,  it  is  to  be  hoped,  not  merely  the 
answer  to  that  question,  but  the  philosophy  of  it.  The 
common  law  must  determine  such  matters.  It  can 
never  turn  away  a  suitor  unless  a  case  is  non-justiciable; 
and  whether  such  a  case,  on  its  facts,  is  of  that  class,  the 
common  law  court  alone  must  determine,  for  no  other 
court  or  power  can  do  so.  The  question  must  be  de- 
termined; other  courts  are  of  limited  jurisdiction,  and 
in  an  English  speaking  commonwealth,  executive  or  ad- 
ministrative powers  are  wholly  non- judicial;  and  so  the 
burden  of  this  decision  must  fall  on  the  common  law 
court.    Every  act  done  to  the  person  or  property  of  the 

26  Bates  V.  Clark,  95  U,  S.  204. 

27  Raymond  v.  Thomas,  91  U.  S.  712. 


152  THE  ARMY  AND  THE  LAW 

citizen  in  time  of  war,  therefore,  must  ultimately  be 
submitted  to  the  arbitrament  of  the  common  law;  the 
question  in  each  such  case  being  whether  an  emergency 
existed  which  justified  the  measure  as  one  of  salvation 
for  the  State.  Once  that  is  determined  in  the  defend- 
ant's favor,  he  goes  free  unless  a  case  of  express  malice  be 
shown.  In  that  event,  of  course,  the  case  is  turned  into 
one  of  oppression  under  color  of  office,  and  is  actionable, 
it  is  submitted,  on  the  same  basis  as  a  case  of  abuse  of 
lawful  process.^^  In  the  absence  of  such  malicious  abuse 
of  power  as  "Flogging  Fitzgerald"  furnished  during  the 
Irish  rebellion  of  1798,  the  defendant  goes  free.  But 
always  must  he  be  prepared  to  show  the  existence  and 
nature  of  the  emergency  constituting  his  impulse  to 
action,  and  it  is  for  the  court  to  say  whether  its  judg- 
ment, in  that  regard,  coincides  with  his. 

The  commander,  therefore,  goes  through  his  arduous 
duties  with  the  possibility  of  civil  actions  to  greet  him 
at  the  close  of  the  war.  It  is  a  situation  pregnant  with 
injustice.  If  the  defendant  can  show  a  situation  of 
emergency  of  the  nature  above  discussed,  then  he  will 
be  safe  enough.  But  the  soldier  works  under  the  double 
pressure  proceeding  from  the  duty  of  absolute  obedience 
to  orders,  and,  in  war  times,  a  feeling  of  responsibility 
for  the  national  safety,  that  may  well  lead  him  to  give 
orders  not  justified  by  any  compelling  emergency  that 
later  a  common  law  court  could  fairly  visualize.  Yet 
the  military  man  must  act,  although  he  knows  that  in 
the  very  decision  he  makes  he  is  entailing  litigation  for 
himself  upon  the  coming  of  peace.  .  Hard  indeed  is  his 
situation. 

28  See  Wright  v.  Fitzgerald,  27  How.  St.  Tr.  751. 


THE  SOLDIER  AND  CIVILIAN  IN  WAR  153 

Recognizing  this  fact,  legislative  action  in  both 
England  and  America  has  taken  a  curious  course,  il- 
logical in  the  extreme,  but  still  so  well  established  as  to 
serve  nowadays  as  a  thing  of  precedent.  This  practice 
is  to  pass,  at  the  close  of  a  war  whose  effects  have  in- 
cluded collisions  between  the  ordinary  rights  of  citizens 
and  the  powers  of  the  military,  an  act  of  indemnity.  In 
England  such  statutes  followed  the  Old  Pretender's  re- 
bellion of  1715,^^  the  Young  Pretender's  invasion  of 
England  in  1745^°  and  the  Irish  rebellion  of  1798.^^ 
As  we  have  just  seen,  such  statutes  were  not  unknown  to 
us  prior  to  the  Civil  War;  and  the  wane  and  close  of 
that  conflict  were  marked  by  two  indemnity  acts  passed 
by  the  United  States  Congress.^^ 

Such  statutes  are  of  two  kinds.  The  first  sort  merely  In- 
demnifies a  particular  officer  for  damages  which  he  might 
have  been  compelled  to  pay  for  a  tort  committed  by  him. 
Such  was  the  case  with  General  Jackson,  following  his 
military  control  of  New  Orleans  during  the  War  of  1812, 
which  we  have  already  mentioned,  and  such  was  the  case 
with  the  famous  Irish  sheriff  "Flogging  Fitzgerald,"  after 
the  jury  had  cast  him  in  damages  in  Wright  v.  Fitzgerald.^^ 

The  other  form  of  statute  was  embodied  in  the  Civil 
War  legislation  just  mentioned.  For  all  acts  done  under 
the  authority  of  army  orders  or  regulations,  a  complete 
defence  was  provided.  In  short,  these  statutes  "made 
the  order  of  the  President,  or  under  his  authority,  a  de- 
fence in  all  courts  to  any  action  for  acts  done  or  omitted 

29  I  Geo.  I,  Stat,  i,  c.  39. 

30  19  Geo.  II,  c.  20. 

31  41  Geo.  Ill,  c.  66. 

32  Act.  March  3,  1863,  12  Stat.  755;  Act  May  11,  1866.  14  Stat.  66. 

33  Supra. 


154  THE  ARMY  AND  THE  LAW 

to  be  done  under  or  by  virtue  of  any  such  order,  or 
under  color  of  any  law  of  Congress." ^^  They  applied  not 
merely  to  soldiers,  but  to  all  other  persons  acting  under 
military  direction,  and  so  not  merely  did  they  protect 
civilian  employees  of  the  army,^^  but  they  also  furnished 
to  a  debtor  a  complete  defence  against  his  creditor,  in  a 
case  where  a  commander  had,  by  way  of  requisition, 
collected  the  debt  for  the  use  of  the  army.^^  Nor  was 
their  application  limited  to  mandatory  orders.  Gen- 
eral orders,  however  permissive  in  scope,  were  also 
allowed  as  a  defence ;  and  this  was  necessary,  for,  as  the 
Supreme  Court  said:  "The  orders  of  which  the  Acts 
speak  are  military  orders,  and  a  large  proportion  of  such 
orders,  it  is  well  known,  are  merely  permissive  in  form. 
They  necessarily  leave  much  to  the  discretion  of  those 
to  whom  they  are  addressed."^'  But  in  the  absence  of 
some  sort  of  order,  discretionary  or  mandatory,  the 
officer  was  left  as  helpless  as  he  would  have  been  in  the 
absence  of  any  legislation  at  all,  except  for  one  thing. 
The  statutes,  for  such  cases,  provided  a  short  period  of 
limitation  within  which  any  action  of  the  sort  must  be 
instituted.  If,  however,  the  action  should  be  instituted 
within  the  time  limit  nominated ,  then ,  the  officer  being  able 
to  point  to  no  indemnity  act,  he  would  be  cast  in  damages. 
The  working  of  this  legislation  is  shown  by  McCall 
V.  McDowell  ^^  which  we  have  already  discussed.^^  Of 
the  two  defendants  sued,  one  had  given  the  order,  and 
the  other  had  obeyed  it,  the  final  result  being  injury  to 

^  Beard  v.  Butts,  95  U.  S.  434. 

^*  Beard  v.  Butts,  supra. 

^  Mitchell  V.  Clark,  no  U.  S.  633. 

'^  Beard  v.  Butts,  supra. 

w  I  Abb.  U.  S.  212,  Fed.  Case  8673. 

»  Supra.  Ch.  VIII. 


THE  SOLDIER  AND  CIVILIAN  IN  WAR  155 

the  plaintiff.  The  court  held,  as  we  have  seen,  that  the 
plaintiff  could  not  recover  against  the  defendant  who 
had  executed  the  order,  because  he  was  protected,  if  not 
by  the  common  law  principles  discussed  in  Chapters 
VIII  and  IV,  then  because  the  case  came  within 
the  purview  of  the  Indemnity  Acts.  But  the  plaintiff 
was  allowed  to  recover  against  the  defendant  who  gave 
the  order,  because  he  could  not  point  to  any  order  or 
regulation,  direct  or  permissive,  justifying  his  conduct, 
however  meritorious  in  good  morals  it  might  have  been. 
This  sort  of  ex  post  facto  legislation  carries  on  its  face 
the  suggestion  that  Congress  might  just  as  well  have 
made  it  precede  the  acts  in  question,  and  thus  have 
made  them  lawful  from  the  first.  The  officer  who 
acts  under  orders  is  left  in  the  position  of  a  wrong-doer 
until,  after  the  event,  an  act  of  Congress  legalizes  what, 
until  the  enrollment  of  the  statute,  was  a  wrong.  And 
although  the  statute  does  not  validate  the  act  as  to  the 
officer  who  created  the  direction  under  which  his  sub- 
ordinate proceeded,  yet  it  provides  for  his  benefit  a 
short  period  of  limitations.  And  we  are  told  that  the 
object  of  abbreviating  the  period  of  limitation  is  that,  if 
judgment  should  be  recovered  against  the  defendant, 
then,  for  his  act,  "if  done  under  a  necessity  or  mistake, 
the  government  should  not  see  him  suffer;"  it  following 
that  the  government  may  not  merely  provide  for  the 
removal  of  such  suits  into  the  Federal  court,  but  may 
also  prescribe  a  period  of  limitation.^^  This  circum- 
stance brings  both  classes  of  cases  together.  If,  as  to  the 
officer  acting  under  orders,  Congress  can,  ex  post  facto, 
legalize  what  he  has  done,  it  can  legislate  in  advance 

*»  Mitchell  V.  Clark,  supra. 


156  THE  ARMY  AND  THE  LAW 

that  such  acts  shall  be  lawful.  If  Congress  can  pay  out 
public  money  in  indemnifying  the  officer  who  creates  the 
order,  for  the  amount  of  a  judgment  recovered  against 
him,  based  on  the  order  being  carried  into  effect,  then 
Congress  may  properly  legalize  such  orders  in  advance, 
and  thus  keep  public  money  in  the  treasury,  or  else  pay 
the  damage  money  direct  to  the  injured  party  instead  of 
standing  a&  indemnifier  for  the  officer. 

There  would  seem  to  be  no  escape  from  these  conclu- 
sions, nor  has  the  Supreme  Court  made  any  determined 
effort  at  such  an  escape.  It  has  upheld  these  statutes, 
and  has  admitted  that,  so  far  as  legalizing  acts  done 
under  order  may  be  concerned,  "most  of  these  acts" 
Congress  could  have  legalized  in  advance,  though  per- 
haps not  all.  That  Congress  can  ratify  an  act  which  it 
could  have  authorized,  "admits  of  no  reasonable  doubt," 
and  as  to  acts  which  could  not  have  been  authorized, 
"who  was  to  determine  this  question?" ^^  This  query  in 
itself  is  hard  to  answer. 

But  as  to  justifying  the  payment  of  funds  for  the  re- 
lief of  an  officer  acting  without  order  or  authority  from 
on  high,  we  are  left  with  merely  the  dogma  enunciated 
in  Mitchell  v.  Clark.  The  whole  subject  is  in  a  most  un- 
satisfactory condition ;  but  at  least  we  know  that,  logic 
or  no  logic,  indemnity  acts  are  constitutional. 

The  Supreme  Court,  however,  spoke  well  when  it 
allowed  that  many  at  least,  of  the  acts  which  Congress 
had  power  to  ratify,  it  had  power  to  authorize  in  ad- 
vance. The  nature  of  those  acts  is  well  understood  of 
both  the  common  law  and  of  history;  but  a  discussion 
of  this  species  must  be  reserved  for  the  next  chapter. 

*i  Mitchell  V.  Clark,  supra. 


X 

MARTIAL  LAW  AT  HOME 

We  ascertained  in  the  last  chapter  that,  in  the  theater 
of  actual  conflict,  the  soldier's  control  over  the  civilian's 
property  and  person  is  complete,  and  that  the  com- 
mander is  not  liable  for  directing  acts  of  domination  so 
long  as  they  were  done  under  the  pressure  of  actual  hos- 
tilities. The  idea  thus  embodied  underlies  the  whole 
vexed  proposition  of  which  we  are  about  to  treat. 
Martial  law  at  home,  or  as  a  domestic  fact,  to  use  the 
phraseology  of  the  Government  Manual  for  Courts 
Martial,  is  nothing  but  an  application  of  the  principle 
that  gives  legal  immunity  for  military  acts  committed 
in  a  battle  zone. 
V^  That  principle  is  very  simple.  The  commander  is  not 
liable  civilly  for  acts  committed  in  the  pressure  of  bat- 
tle, because  the  common  law  does  not  reign  on  a  field  of 
action.  The  reason  for  the  municipal  law's  abdication 
in  those  circumstances  lies  in  the  fact  that  you  cannot 
have  law  without  courts  for  its  enforcement ;  theoreti- 
cally, perhaps,  you  may,  but  actually  you  cannot.  And 
further,  you  cannot  have  courts,  in  the  same  pragmatic 
sense  in  which  we  have  just  spoken,  unless  they  are  free 
to  execute  their  judgments  or  decrees.  Back  of  every 
writ  issued  must  lie  the  full  power  of  the  State,  to  be 
exerted,  if  necessary,  in  its  execution,  or  else,  from  a 
common  sense  standpoint,  it  is  no  writ  at  all.  Now  if 
the  State  is  not  in  a  position  to  back  up  the  execution 
of  a  judicial  order  because,  in  the  territory  where  that 


158  THE  ARMY  AND  THE  LAW 

order  is  to  have  effect,  if  at  all,  the  State's  energies,  rep- 
resented in  its  army,  are  engrossed  in  a  struggle  with  an 
armed  enemy,  then  there  is  no  effectual  writ,  and  this 
deprives  the  court  which  issued  it  of  the  powers  neces- 
sary for  its  functioning.  And  so,  reaching  back  still 
further  in  our  reasoning,  we  must  conclude  that,  under 
such  conditions,  the  municipal  law,  as  to  the  territory 
affected  by  arms,  has  ceased  to  reign.  Acts  committed 
in  such  an  area  of  war  cannot  be  considered  in  respect 
to  their  character  as  violating  rights  conferred  by  the 
common  law,  because,  the  courts'  writs  not  running 
freely  in  the  zone  of  conflict,  the  common  law  does  not 
prevail  there.  The  law  that  has  place  is  martial  law, 
the  rule  of  the  commander,  and  he,  as  we  have  seen,  is 
bound  only  by  the  obligations  of  his  calling,  the  laws 
and  customs  of  war.  Nor  would  it  alter  things  if  the 
commander  should  permit  the  courts  to  remain  open 
in  such  a  zone ;  for  in  that  case  there  is  lacking  the  all- 
important  requisite  that  the  common  law  courts,  to  be 
courts  at  all,  rnust  be  free,  and  their  judgments  must 
have  back  of  them  the  whole  power  of  the  State,  and 
not  depend  upon  the  fiat  of  the  commander. 

It  follows,  as  a  matter  of  course,  that  martial  law  pre- 
vails when  the  civil  courts  are  closed,  or  remain  open 
only  under  military  sufferance;  of  this  no  doubt  can 
exist,  either  in  England  or  America.^  It  was  for  that 
reason  that,  after  the  conviction  of  Major  Andre, ^ 
Washington  was  justified  in  bringing  the  civilian  Joshua 
Smith,  at  whose  house  Major  Andre  had  spent  the  night 
before  setting  out  on  his  return  to  New  York  City,  to 

^  Exp.  Milligan,  4  Wall.  2,  majority  opinion. 
2  Supra,  Ch.  V. 


MARTIAL  LAW  AT  HOME  159 

trial  for  treason,  before  a  military  court  sitting  at  Tap- 
pan.^  That  part  of  New  York  State  was  a  debatable 
land,  swept  by  the  fringes  of  the  opposing  armies;  and 
hence  the  military  court  was  the  only  source  of  justice 
and  sanction.  The  law  administered  was,  therefore, 
in  real  truth,  martial  law;  for  there  can  be  no  common 
law,  as  such,  without  the  unconditioned  operation  of 
common  law  courts. 

Nor  need  the  locus  in  quo  necessarily  be  open  coun- 
try of  field  operations.  It  may  just  as  well  be  a  fortress 
in  a  state  of  actual  siege;  for  in  a  siege  of  the  old  style 
the  whole  city  constitutes  in  effect  a  field  of  battle. 
Martial  law  in  a  besieged  fortress,  therefore,  can  violate 
no  conceivable  principle  of  common  law,  because  there 
can  be  no  free  civil  courts  in  such  a  place,  and  hence 
there  can  be  no  state  of  common  law  to  be  superseded. 
To  that  extent  the  continental  idea  of  the  etat  de  siege 
violates,  in  its  primitive  form,  no  principle  of  common 
law.  The  etat  de  siege,  as  a  legal  proposition  in  all  con- 
tinental countries,  goes  back  to  a  decree  of  the  French 
Convention,  which  provides  that  the  commander  of  a 
strong  place  may  put  in  force  a  state  of  martial  law  from 
the  time  when  the  enemy  appears  at  a  certain  distance 
from  the  outworks,  and  that  martial  law  shall  cease 
within  the  fortress  after  the  enemy's  besieging  works 
have  been  destroyed.  This  decree  was  later  confirmed 
by  a  law  of  the  First  Empire;   and,  re-embodied  in  a 

'  Trial  of  Joshua  Smith,  2  Chandler's  Criminal  Trials,  187.  In  Smith's 
written  defense,  read  before  the  court,  is  an  amusing  account  of  the  reception 
he  got  from  Washington  when  he  was  brought  into  the  General's  awful 
presence  immediately  after  his  arrest,  2  Chandler,  187.  Smith  was  acquitted, 
for  all  that. 


l6o  THE  ARMY  AND  THE  LAW 

law  of  the  Third  RepubHc,  Is  still  of  force  In  France."* 
Such  a  statute  differs  in  nothing  from  the  common  law- 
view  except  in  point  of  precision.  The  French  law  de- 
fines, by  reference  to  events,  the  precise  moments  when 
the  state  of  siege  commences  and  when  it  ends.  The 
common  law  makes  no  such  definition,  but  leaves 
the  matter  to  the  circumstances  of  the  case.  Which 
method  is  preferable  in  that  regard  is  beside  the 
point;  in  the  essentials  there  is  no  difference.  The 
French  law  fixes  the  point  of  beginning  at  the  appear- 
ance of  the  enemy  "1800  toises  from  the  crest  of  the 
covered  way ;"  the  common  law  places  it  at  the  moment 
when  the  courts  can  no  longer  sit  undisturbed  and  exe- 
cute their  process,  a. moment  which  perforce  must  arrive 
soon  after  the  enemy,  in  the  language  of  the  classic 
siege,  "opens  trenches."  But  it  would  outrage  no  com- 
mon law  idea  if  a  statute  should  fix  the  points  of  com- 
mencement and  termination  of  the  state  of  siege  after 
the  manner  of  the  French  law;  and,  as  it  happens,  the 
Confederate  Congress  did  pass  substantially  such  a  law 
at  an  early  stage  of  the  Civil  War.  As  a  result,  the  pro- 
gress of  McClellan's  army  up  the  Peninsula  in  1862  is 
marked  by  successive  proclamations  of  President  Davis, 
putting  one  city  or  county  after  another  under  complete 
martial  law.^  Such  practices  necessitated  military 
commissions  for  the  trial  of  non-military  offenders,  and 
we  find  frequent  mention  of  such  courts  In  the  annals 
of  the  Confederacy.^ 

*  Decree  of  National  Assembly  of  July  lo,  1791;  confirmed  by  law  of 
December  24,  181 1,  and  of  July  10,  1871.  See  Birkhimer,  Military  Govern- 
ment and  Martial  Law,  Appendix  V.  For  regulations  of  force  in  a  town  during 
the  state  of  siege,  see  Dicey,  Law  of  the  Constitution,  8th  ed.,  p.  288. 

s  I  Messages  and  Papers  of  the  Confederacy,  219,  sq. 

6  See  Davis,  Military  Law,  3d  ed.,  p.  303  n. 


MARTIAL  LAW  AT  HOME  l6l 

Up  to  this  point  there  has  been  no  difficulty  and  we 
encounter  practically  no  dispute.  Martial  law,  in 
short,  prevails  as  of  course  in  the  field  of  fire,  be  it  large 
or  small;  whether  we  have  the  case  of  a  siege  of  a 
Vauban  fortress,  or  the  modern  instance  of  intrenched 
lines  extending  for  many  kilometers,  martial  law,  as  of 
course,  prevails  within  the  region  affected.  We  have 
now  to  deal  with  a  more  troublesome  question,  whether, 
in  a  common  law  country,  it  is  possible  to  have  a  state  of 
martial  law  in  a  domestic  area  which  is  not  the  seat  of 
actual  war. 

We  must  all  agree  that  certain  extensions  of  the 
etat  de  siege^  made  by  French  law,  have  no  parallel  in  the 
common  law.  In  the  absence  of  statute,  we  can  have  no 
martial  law  during  the  period  of  mobilization,  as  is  the 
case  in  European  countries.^  Our  national  constitution 
does  not  expressly  recognize  any  power  of  Congress  to 
extend,  by  statute,  the  principle  of  the  state  of  siege  to 
territory  not  affected  by  actual  military  operations. 
Nor  does  the  constitution  of  any  State  allow  for  such  a 
thing.  Prior  to  its  incorporation  as  a  territory  of  our 
nation,  Hawaii  had  a  constitution  which  allowed  for  the 
declaration  of  a  state  of  siege  according  to  continental 
ideas,  but  it  has  not  that  constitution  now;^  indeed,  in 
the  constitutions  of  but  four  of  our  States  is  martial  law, 
as  we  understand  it,  recognized  even  by  implication.^ 
And  against  all  this  we  have,  in  every  constitution, 

^  See,  for  a  picturesque  account  of  the  proclamation  of  martial  law  in 
Berlin  at  the  opening  of  the  Great  War,  Gerard,  My  Four  Years  in  Germany, 

403. 

8  IS  Columbia  Law  Review,  178-179. 

»  Massachusetts,  New  Hampshire,  Rhode  Island  and  South  Carolina,  15 
Columbia  Law  Review,  179. 


i62  THE  ARMY  AND  THE  LAW 

State  and  Federal,  the  full  "constitutional  guaranties" 
which  found  expression  in  the  Petition  of  Right  of  the 
time  of  Charles  I,  and  the  Declaration  of  Rights  of  the 
Revolution  of  1688,  providing  for  indictment,  trial  by 
jury  and  the  like — things  which  are  the  breath  of  the 
common  law — and  no  provision  for  their  supersession. 
With  much  show  of  force,  then,  may  writers  of  a 
high  type  say  that  martial  law  has  no  place  in  the 
English  constitution,  and  legalists  of  the  type  of  Alex- 
ander H.  Stephens  denounce  the  very  idea  of  martial 
law  in  any  form.^° 

These  writers  admit  that  martial  law  once  had  a  place 
in  the  laws  of  England,  but  assert  that  with  the  Peti- 
tion of  Right  it  departed,  leaving  no  trace  of  its  pres- 
ence. So  often,  indeed,  has  that  proposition  been 
asserted,  so  often  has  it  been  passively  accepted,  that 
many  people  consider  it  well  founded  in  historical  truth 
as  well  as  in  judicial  decision. 

It  is  submitted  that  this  proposition  is  wrong  in  both 
its  concession  and  its  conclusion.  Martial  law  was 
never  a  part  of  the  constitution  of  England,  any  more 
than  it  is  a  part  of  out  law.  Hence  it  made  no  departure 
from  the  English  system  at  the  time  of  the  Petition  of 
Right,  for  it  was  never  a  part  of  that  system.  But  mar- 
tial law,  in  one  or  both  of  its  phenomena,  is  legally 
possible  in  England,  just  as  it  is  constitutionally  possi- 
ble with  us.  Its  appearance  on  the  scene  is  not  as  a  part 
of  the  municipal  law,  but  as  the  State's  supreme  measure 
of  self-defense.  Constitutional  theories  in  England,  and 
written  constitutions  in  our  land,  are  designed  to  limit 
municipal  law,  in  its  extension  or  application ;  but  they 

^"  See  citations  infra. 


MARTIAL  LAW  AT  HOME  163 

have  no  reference  to,  and,  therefore,  do  not  exclude,  the 
State's  resort  to  martial  law  In  defense  of  the  very  con- 
stitution itself.  In  that  sense,  and  a  very  real  sense  it  is, 
martial  law  is  a  part  of  our  constitutional  system,  as  will 
be  demonstrated  by  the  authorities  presently  to  be 
cited. 

But  before  introducing  these  authorities,  let  us  see 
what  martial  law  at  home  really  means.  Its  main  neces- 
sity consists  in  the  disloyal  acts  of  our  own  citizens. 
The  acts  of  the  alien  enemy  can  largely  be  reached 
through  the  process  of  internment,  and  for  war  crimes 
he  is,  as  previously  suggested,  subject  to  the  jurisdic- 
tion of  military  courts;  because  being  always  beyond 
the  peace  of  the  State,  he  cannot  object  to  the  juris- 
diction of  the  military  courts  to  try  him  for  any  war 
crime  he  may  commit.^^  The  Eighty-second  Article 
of  War,  making  certain  sorts  of  espionage  triable  by 
court  martial  ^^  is  chiefly  valuable  in  its  application 
to  neutrals  and  citizens;  the  alien  enemy's  case  does  not 
require  that  statute  to  bring  him  within  the  jurisdiction 
of  the  military  court.  But  the  traitorous  citizen,  out- 
side of  acts  coming  within  the  scope  of  the  Eighty- 
second  Article,  is  not  subject  to  the  jurisdiction  of  a 
military  court.  Yet  his  acts,  committed  far  behind  the 
lines,  may  harmfully  afl'ect  the  national  defense  and 
inestimably  aid  the  enemy. 

So  long  as  it  can  do  so,  the  government  will  protect 
itself  by  the  enforcement  of  the  municipal  law.  Its 
powers,  in  that  regard,  may  be  exerted  by  way  of 
prevention  as  well  as  punishment. 

^^  Supra,  Ch.  VI. 
12  Supra,  Ch.  III. 


164  THE  ARMY  AND  THE  LAW 

It  can,  if  It  pleases,  obtain  In  equity  an  Injunction  for- 
bidding acts  harmful  to  the  operation  of  government.^' 
If  the  acts  amount  to  an  obstruction  of  judicial  process 
or  of  law  and  order,  the  army  can  be  used  for  the 
enforcement  of  the  law.  In  England  It  can  be  used  In 
aid  of  judicial  process,  really  by  way  of  a  posse  comi- 
tatus}"^  The  restrictions  governing  the  use  of  our 
national  forces  In  this  connection  have  already  been 
indicated, ^^  but,  when  within  the  terms  of  those  restric- 
tions, the  Executive  can  use  the  entire  armed  forces  of 
the  nation  In  defense  of  its  laws ;  and  that,  too,  without 
resort  to  any  injunction  In  equity. ^^ 

In  that  regard,  force  can  be  used,  and  there  Is  no  lia- 
bility to  any  of  those  who  may  suffer  physical  harm 
from  the  use  of  such  force.  The  civil  magistrate.  Indeed, 
is  guilty  of  malfeasance  of  office  If  he  does  not  use  force 
when  necessary.  The  Lord  Mayor  of  London  was  thus 
convicted  for  his  not  using  the  troops  to  suppress  the 
Gordon  riots,  whereas  the  mayor  of  Bristol  was  ac- 
quitted on  a  similar  charge  in  connection  with  the 
Bristol  riots  of  1830.^^     In  England,  indeed,  there  is 

-      13  Re  Debs,  158  U.  S.  564,  15  Sup.  Ct,  Rep.  900. 

"  Burdett  v.  Abbott.  4  Taunt.  401. 

«  Supra,  Ch.  II. 

"  Re  Debs,  supra. 

"  Rex  V.  Kennett,  5  C.  &  P.  282;  Rex  v.  Pinney,  id.  254.  "In  1780  .  .  . 
soldiers  with  arms  in  their  hands  stood  by  and  saw  felonies  committed, 
houses  burnt,  and  pulled  down  before  their  eyes,  by  persons  whom  they  might 
lawfully  have  put  to  death,  if  they  could  not  otherwise  prevent  them,  without 
interfering;  some  because  they  had  no  commanding  officer  to  give  them  the 
command,  and  some  because  there  was  no  justice  of  the  peace  with  them.  It 
is  the  more  extraordinary,  because  formerly  the  posse  comitatus,  which  was 
the  strength  to  prevent  felonies,  must  in  a  great  proportion  have  consisted  of 
miUtary  tenants,  who  held  lands  by  the  tenure  of  military  service.  If  it  is 
necessary  for  the  purpose  of  preventing  the  mischief,  or  for  the  execution  of 
the  law,  it  is  not  only  the  right  of  soldiers,  but  it  is  their  duty  to  exert  them- 
selves in  assisting  the  execution  of  a  legal  process,  or  to  prevent  any  crime  or 


MARTIAL  LAW  AT  HOME  165 

theoretically  a  condition  precedent  to  the  use  of  armed 
force,  in  the  shape  of  a  proclamation  under  the  Riot 
Act/^  but,  in  view  of  the  determination  that  the  magis- 
trate may  omit  compliance  with  the  statute  in  case  of 
emergency, ^^  we  may  take  it  that  in  England,  as  here, 
the  magistracy  may  use  the  troops  instanter  for  the 
suppression  of  obstructive  acts. 

These  measures  of  prevention,  it  will  be  observed, 
make  the  army  wholly  ancillary  to  the  civil  power.  The 
troops  act  at  the  bidding  of  the  civil  power;  indeed  they 
may  not  do  otherwise.  "The  military  officer,"  says  Lit- 
tledale,  J.  ^^  "may  act  without  any  magistrate,  but  no 
prudent  military  man  would  do  so,  because  his  acting 
may  be  attended  with  the  loss  of  life;  but  if  a  magis- 
trate gives  him  an  order  to  act,  that  is  all  that  is  re- 
quired." This  is,  therefore,  no  sort  of  martial  law,  for 
the  use  of  the  military  amounts  to  nought  but  the  sup- 
pression of  a  riot.  The  civil  arm  inflicts  physical  harm 
by  the  use  of  the  weapon  it  grasps,  but  none  the  less  the 
act  is  the  act  of  the  civil  power,  and  the  acts  suppressed 
are  not  acts  of  war  or  of  rebellion.^^  Both  "Shay's 
Rebellion"  in  Massachusetts,  and  the  ^Whiskey  Re- 
bellion" in  Pennsylvania,  in  legal  theory,  differed  in  no 
way  from  the  Gordon  riots  of  1780  or  the  reform  riots 
which  took  place  in   Bristol;    for  in  each  of  these 

mischief  being  committed.  It  is,  therefore,  highly  important  that  the  mis- 
take should  be  corrected,  which  supposes  that  an  Englishman,  by  taking 
upon  him  the  additional  character  of  a  soldier,  puts  off  any  of  the  rights  and 
duties  of  an  Englishman."  Sir  James  Mansfield,  C.  J.,  in  Burdett  v.  Abbott, 
4  Taunt.  401. 

"  I  Geo.  I,  stat.  2,  c.  5. 

^9  Rex  V.  Pinney,  supra;  Report  of  Commissioners  (including  Bowen, 
L.  J.)  on  the  Featherstone  Disturbances,  printed  in  Dicey,  op.  cit.  512. 

20  Rex  V.  Pinney,  supra. 

21  See  Re  Debs,  supra. 


I66  THE  ARMY  AND  THE  LAW 

"rebellions,"  if  we  may  trust  to  the  industry  of  Wood- 
bury, J.  22  the  military  was  wholly  under  the  direction  of 
the  civil  power. 

Where  the  civil  power  has  been  in  control  in  acts  of 
prevention,  it  likewise  controls  in  matter  of  punishment. 
Rioters  taken  by  the  troops  are  handed  over  to  the  local 
jailer,  to  be  brought  before  a  committing  magistrate  in 
the  same  course  as  of  an  arrest  by  a  constable.  The 
constitutional  rights  of  the  wrong-doers  subsist  through- 
out the  drama. 

But  the  seditious  acts  may  be  of  such  a  nature  as  to 
put  the  civil  magistracy  wholly  out  of  action.  Its  con- 
trol may  be  wholly  lost  or  so  impaired  as  to  be  ineffec- 
tual for  the  government's  protection.  When  that  point 
is  reached,  and,  therefore,  the  action  of  the  military,  in 
prevention  or  punishment,  or  both,  is  not  controlled  by 
the  civil  authority,  then  we  have  a  state  of  martial  law. 

Martial  law,  in  that  connection,  simply  means  a 
substitution  of  agencies  for  the  accomplishment  of  but 
one  end,  the  preservation  of  the  State's  supremacy. 
The  municipal  law,  as  we  have  just  seen,  has  a  choice  of 
two  methods,  prevention  and  punishment.  Martial 
law  acts  in  exactly  the  same  way.  There  are,  in  short, 
two  kinds  of  martial  law,  the  punitive  type  and  the 
preventive. 

Punishment  is  inflicted  through  the  sentence  of  a 
military  commission.  A  court  martial,  as  such,  would 
have  no  jurisdiction,  inasmuch  as  the  accused  would 
not  be  members  of  the  army,  nor  would  all  of  them 
necessarily  be  alien  enemies, ^'^  wherefore  the  military 

**  Dissenting  opinion  in  Luther  v.  Borden,  7  How.  i. 
"SeeCh.  III. 


MARTIAL  LAW  AT  HOME  167 

commission  Is  the  proper  court  for  administration  of 
the  punitive  type  of  martial  law  at  home.^^ 

The  preventive  method  is  of  the  simplest  nature;  It 
means  either  the  forcible  breaking  up  of  assemblies, 
protecting  public  places  by  force,  or  removing  the  per- 
son of  a  wrong-doer  to  a  place  of  restraint  and  keeping 
him  there,  without  the  warrant  of  any  court.  The  latter 
thing  cannot  possibly  be  done  in  the  absence  of  martial 
law;  because  all  the  offender  would  need  do  would  be 
to  sue  out  a  writ  of  habeas  corpus.  This  writ  requires 
the  production  of  the  prisoner  before  a  civil  court,  to- 
gether with  a  return  showing  the  cause  of  his  detention. 
No  cause  recognizable  at  common  law  could  be  shown, 
and  the  court  would,  therefore,  direct  the  discharge  of 
the  prisoner.  It  follows  that  there  can  be  no  martial 
law  without  a  suspension  of  the  writ  of  habeas  corpus}^ 

Such  are  the  two  independent  phases  of  martial  law: 
First,  prevention,  including  the  suspension  of  the  writ  of 
habeas  corpus,  and,  second,  punishment,  involving  the 
trial  and  judgment  of  civilians  by  a  military  commission. 
This  brings  us  to  an  examination  of  common  law  author- 
ities regarding  either  system  as  a  lawful  possibility. 

2<  A  remark,  such  as  was  made  by  a  respectable  legal  journal  shortly  after 
the  Civil  War,  that  the  jurisdiction  of  military  commissions  "is  at  least  of 
doubtful  validity,"  i  American  Law  Review,  389,  is  entitled  to  respect  only  on 
the  charitable  assumption  that  the  writer  was  referring  to  martial  law.  A 
state  of  punitive  martial  law  justifies  the  military  commission  as  a  matter 
of  course,  and  the  only  question  in  such  a  case  would  be  whether  the  circum- 
stances justified  martial  law  at  all. 

26  Exp.  Field,  5  Blatch.  63,  Fed.  Case  4761.  "I  have  personally  known  an 
officer,  who  for  the  same  reason,  i.  e.,  to  avoid  service  of  habeas,  never  left 
Fort  Lafayette,  New  York  Harbor,  for  over  a  year  and  a  half,  when  that  en- 
closure was  used  for  internment  purposes  during  the  Civil  War."  Judge 
Hough,  Law  in  War  Time,  31  Harvard  Law  Review,  698.  Such  embarrass- 
ments are  bound  to  occur  in  the  absence  of  a  recognized  state  of  martial  law. 


i68  THE  ARMY  AND  THE  LAW 

We  may  start  with  a  general  proposition.  A  per- 
manent military  government,  our  Supreme  Court  has 
declared,  would  not  be  of  the  republican  type.  But 
when  used  merely  for  a  crisis,  "and  to  meet  the  peril  in 
which  the  existing  government  is  placed  by  armed  re- 
sistance to  its  authority,"  there  is  no  constitutional  ob- 
jection to  it.^^  In  case  of  an  insurrection  "similar  powers 
(of  military  control)  may  arise  during  the  continuance 
of  the  necessity."  ^^  Martial  law  under  those  conditions, 
has  fitly  been  called  "a  species  of  hostilities  directed 
against  individuals  who  have  placed  themselves  in  the 
position  of  enemies,  and  have,  therefore,  deprived 
themselves  of  all  the  safeguards  which  the  constitution 
throws  about  the  lives,  liberty  and  property  of  citi- 
zens." ^^  Obviously,  then,  martial  law  cannot  exist  in 
time  of  peace.  Its  function  is  to  protect  the  State  in 
time  of  deadly  peril  to  the  commonwealth ;  to  use  it  in 
time  of  peace  is,  therefore,  a  flagrant  case  of  lawlessness. 
Such  is  the  simple  proposition  to  be  kept  in  view. 

Now  let  us  turn  to  history.  English  annals  have  not 
presented  a  uniform  pageant  of  domestic  peace.  It  is 
quite  true  that  at  an  early  date  the  common  law 
established  a  sort  of  supremacy,  but  it  was  a  supremacy 
over  those  who  acknowledged  the  Crown's  authority, 
and  many  there  were  who  refused  to  do  that. 

Until  the  union  of  the  Crowns  of  Scotland  and  Eng- 
land, the  border  along  the  Tweed  was  in  so  chronic  a 
state  of  war  and  reprisal  that  a  distinct  code  of  laws 

**  Luther  v.  Borden,  supra. 

27  9  Halsbury's  Laws  of  England,  104.  Lord  Halsbury,  the  editor  of  this 
encyclopaedia,  delivered  the  judgment  of  the  Privy  Council  in  Exp.  Marais, 
infra. 

28  Pomeroy,  Constitutional  Law,  Sect.  711. 


MARTIAL  LAW  AT  HOME  169 

of  war  grew  out  of  the  armed  relations  between  Southron 
and  Scot.^^  But  not  merely  on  the  border  were  there 
states  of  armed  force.  The  condition  of  England  during 
the  Wars  of  the  Roses  is  graphically  shown  in  the  Paston 
Letters;  but  even  in  the  reign  of  Richard  II  we  find 
record  evidence  of  the  then  state  of  the  times.  The  pre- 
amble of  a  statute  of  maintenance  passed  in  1378,^^ 
refers  to  the  nuisance  of  roving  bands  of  baronial  re- 
tainers, who  acted  "as  it  were  in  a  land  at  war."^^  This 
state  of  lawlessness,  in  contempt  of  the  King's  Courts 
and  their  process,  a  state  "of  which  our  strictly  legal 
authorities  disclose  very  little," ^^  continued  until  Tudor 
times,  only  to  be  succeeded  by  successive  conditions  of 
civil  war  and  rebellion.  The  Tudors,  strong  of  will  and 
courage,  withstood  their  enemies  with  armed  force,  and, 
arms  being  the  recourse,  very  logically  applied  to  their 
adversaries  the  law  of  the  arbitrament  to  which  they 
had  appealed.  Consequently  martial  law  figures  prom- 
inently in  the  reigns  of  Henry  VIII  and  his  two  daugh- 
ters, Mary  and  Elizabeth. 

To  a  degree,  there  was  logic,  of  the  sort  recognized 
by  common  law,  in  this  use  of  martial  law.  But  Mary 
and  Elizabeth  agreed  in  but  one  thing,  and  that 
was  in  an  abuse  of  martial  law,  an  abuse  which  lay 
in  subjecting  to  military  courts  persons  whose  offenses 
had  been  committed  in  time  of  peace.  Therein  they 
paved  the  way  for  their  Stuart  successors  to  commit 
further  abuses  along  this  line. 

29  By  way  of  passing  interest  the  reader  is  referred  to  the  chapter  on 
"Border  Law"  in  Mr.  Watt's  entertaining  book,  "The  Law's  Lumber  Room." 
See  also  the  Case  of  the  Lords  Presidents,  12  Co.  Rep.  51. 

»o  2  Ric.  n,  Stat.  I,  c.  6. 

31  See  Jusserand,  English  Wayfaring  Life  in  the  Middle  Ages,  149,  sq. 

^  Pollock,  Genius  of  the  Common  Law,  Ch.  IV. 


170  THE  ARMY  AND  THE  LAW 

On  Henry's  reign  we  have  the  evidence  of  Coke.  In 
the  Case  of  the  Lords  Presidents  ^^  he  tells  of  the  various 
risings  which  resulted  from  the  King's  ecclesiastical 
policy,  particularly  the  great  Rising  of  the  North. 
"Many  of  these  rebels  were  executed  in  furore  belli  and 
in  flagrante  crimino  by  martial  law,  and  some  were  at- 
tainted by  the  common  law."  This  application  of  mar- 
tial law,  in  a  district  forming  a  seat  of  war,  is  not  so 
strange  to  the  present-day  mind.  Nor  did  Henry's 
daughters  wholly  ignore  the  distinction  between  times 
of  peace  and  times  of  war ;  but  they  abused  the  proposi- 
tion until  its  original  application  was  almost  forgotten. 
Bacon  was  possibly  right  in  his  statement  that  Eliza- 
beth could  have  put  the  Earl  of  Essex  before  a  military 
court  because  of  his  conspiracy,  if  the  State  was  thereby 
put  in  a  state  of  extreme  peril  ;^^  but  the  Tudor  sisters 
went  beyond  that.  The  method  they  adopted  was,  by 
the  simple  process  of  declaring  their  acts  to  be  turbulent 
and  rebellious,  to  put  offending  citizens  within  the 
jurisdiction  of  military  courts. 

Pursuant  to  this  reasoning.  Queen  Mary  proclaimed 
that  "whosoever  had  in  his  possession  any  heretical, 
treasonable,  or  seditious  books,  and  did  not  presently 
burn  them,  without  reading  them  or  showing  them  to 
any  other  person,  should  be  esteemed  a  rebel,  and  with- 
out any  further  delay  be  executed  by  the  martial  law."^^ 
Elizabeth's  performances  were  even  more  bizarre.  That 
eighteenth  century  Liberal,  Hume,  says  of  her  reign, 
that  "whenever  there  was  any  insurrection  or  public 

33  12  Co.  Rep.  SI. 
3*  See  Hume,  infra. 

35  Tytler,  Military  Law  50;  see  dissenting  opinion  of  Woodbury,  J.,  in 
Luther  v.  Borden,  supra. 


MARTIAL  LAW  AT  HOME  171 

disorder,  the  Crown  employed  martial  law;  and  it  was 
during  that  time  exercised  not  only  over  soldiers,  but 
over  the  whole  people ;  any  one  might  be  punished  as  a 
rebel  or  an  aider  and  abettor  of  rebellion,  whom  the 
provost-martial  or  lieutenant  of  a  county,  or  their 
deputies,  pleased  to  suspect." ^^  The  distinction  between 
peace  and  war  was  of  little  importance  to  the  Queen. 
Thus,  one  Burchett,  a  Puritan,  became  inspired  with 
the  idea  that  no  one  but  those  of  his  sect  ought  to  live ; 
wherefore,  proceeding  to  the  street,  he  attacked  the  first 
man  he  met,  who  happened  to  be  the  famous  Hawkins, 
the  Admiral.  This  so  incensed  Elizabeth  against  the 
Puritan,  "that  she  ordered  him  to  be  punished  imme- 
diately by  martial  law;  but  upon  the  remonstrance  of 
some  prudent  councillors,  who  told  her  that  this  law  was 
usually  confined  to  turbulent  times,  she  recalled  her 
order  and  delivered  over  Burchett  to  the  common 
law."  ^^  We  have,  however,  a  more  extreme  instance, 
where  Elizabeth,  finding  the  common  law  courts  and 
star  chamber  unable  to  suppress  assemblies  of  "idle 
vagabonds  and  riotous  persons"  in  the  streets  and  pur- 
lieus of  London,  issued  a  commission  of  provost  martial 
to  Sir  Thomas  Wilford.  This  commission  directed  the 
provost-martial,  "upon  signification  given  by  the  jus- 
tices of  the  peace  in  London  or  the  neighboring  counties, 
of  such  offenders  worthy  to  be  speedily  executed  by 
martial  law,  to  attach  and  take  the  same  persons,  and, 
in  the  presence  of  said  justices,  according  to  justice  of 
martial  law,  to  execute  them  upon  the  gallows  or  gibbet 
openly,  or  near  to  such  place  where  the  said  rebellious 

38  Hume,  History  of  England,  Appendix  III. 
'"'  Hume,  op.  cit. 


172  THE  ARMY  AND  THE  LAW 

and  incorrigible  offenders  shall  be  found  to  have  com- 
mitted the  said  great  offenses."  ^^ 

Yet  during  those  very  days  of  abuse  Coke  was  writ- 
ing, as  a  plain  expression  of  the  common  law  view,  that 
"if  a  lieutenant,  or  any  other  that  hath  commission  of 
martial  authority  in  time  of  peace  hang  or  otherwise 
execute  any  man  by  color  of  martial  law,  this  is  mur- 
der." ^^  Coke,  afterwards  one  of  the  authors  of  the  Peti- 
tion of  Right,  knew  the  true  line  of  distinction ;  he  knew 
that  the  difficulty  with  the  actions  of  Mary  and  Eliza- 
beth was  that  they  overlooked  the  distinction  between 
times  of  peace  and  conditions  of  war. 

Then  we  have  Stuart  times.  Charles  I  brought  mat- 
ters to  a  head  by  quartering  soldiers  in  Plymouth,  and 
putting  the  County  of  Devon  under  martial  law,  all  in  a 
state  of  profound  peace.  As  a  result  came  the  Petition 
of  Right.^°  Its  effect,  according  to  a  great  authority, 
is  "that  the  exercise  of  martial  law,  whereby  any  person 
should  lose  his  life,  or  member,  or  liberty,  may  not  be 
permitted  in  time  of  peace,  when  the  king's  courts  are  open 
for  all  persons  to  receive  justice  according  to  the  laws  of 
the  land.  This  is  in  substance  declared  in  the  Petition  of 
Right,  3  Car.  i,  whereby  such  commissions  and  martial 
law  were  repealed  and  declared  to  be  contrary  to  law."^^ 
To  the  same  effect  writes  Selden,  who  participated  in  the 
debate  when  the  Petition  of  Right  was  before  the  House  of 
Commons.  "Martial  law  in  general,  "he  says,  "means  noth- 
ing but  the  martiallawof  this  or  that  place;  with  us  to  be 

38  Hume,  op.  cit. 

39  3  Coke's  Institutes  52. 

*°  As  first  drafted,  the  Petition  condemned  only  billeting.  Gardiner, 
History  of  England,  vol,  6,  p.  275. 

*^  Hale,  History  of  the  Common  Law,  5th  ed.,  vol.  i,  p.  55. 


MARTIAL  LAW  AT  HOME  173 

usedin  furore  belli,  In  the  face  of  the  enemy,  not  in  time  of 
peace;  there  they  can  take  away  neither  Hmb  nor  life.  The 
commanders  need  not  complain  for  want  of  it,  because 
our  ancestors  have  done  gallant  things  without  it."^^ 

Thus  we  find  Coke,  who  wrote  before  the  Petition 
of  Right  was  framed,  and  who  drew  It,  Selden,  who  par- 
ticipated in  the  debate  upon  it,  and  Hale,  who  wrote  in 
the  succeeding  reign,  uniting  in  saying  that  there  can  be 
no  martial  law — but  when?    "In  time  of  peace." 

Finally  let  us  turn  to  the  words  of  the  document  itself. 
"The  framers  of  the  Petition  of  Right,"  says  Lord  Hals- 
bury,  L.  C.^^  "knew  well  what  they  meant  when  they 
made  a  condition  of  peace  the  ground  of  the  illegality  of 
unconstitutional  procedure."  Sir  Frederick  Pollock, 
the  reporter,  adds  this  foot-note  to  that  decision:  "It  is 
a  matter  of  historical  fact  that  there  was  not  any  state  of 
war  at  the  times  and  places  of  the  acts  complained  of. 
The  words  'time  of  peace'  are  familiar  in  the  Mutiny 
(now  Army  Annual)  Act,  but  do  not  occur  in  the  Peti- 
tion of  Right."  ^^    Lord  Halsbury's  language,  therefore, 

«  Selden,  Table  Talk,  2. 

*^  Exp.  Marais  (1902)  A.  C.  109. 

^^  Footnote  to  report  of  Exp.  Marais  (1902)  A.  C.  at  p.  116.  The  applic- 
able portions  of  the  Petition  are  thus  quoted  in  the  same  footnote :  "The  pre- 
amble states  that  commissions  have  issued  under  the  Great  Seal  'by  which 
certaine  persons  have  been  assigned  and  appointed  Commissioners  with 
power  and  authoritie  to  proceed  within  the  land  according  to  the  justice  of 
martiall  lawe  against  such  souldiers  or  marriners  or  other  dissolute  persons 
joyning  with  them'  as  therein  mentioned,  'and  by  such  summary  course  and 
order  as  is  agreeable  to  martiall  lawe  and  as  is  used  by  armies  in  tyme  of  warr 
to  proceed  to  the  tryall  and  condemnacion  of  such  offenders,  and  them  to 
cause  to  be  executed  and  putt  to  death  according  to  the  lawe  martiall.  By 
pretext  whereof  some  of  your  Majesties  subjects  have  been  by  some  of  the 
said  Commissioners  put  to  death,  when  and  where,  if  by  the  lawes  and 
statutes  of  the  land  they  had  deserved  death,  by  the  same  lawes  and  statutes 
alsoe  they  might  and  by  no  other  ought  to  have  byn  judged  and  executed'. 
Also  that  offenders  have  escaped  punishment  in  ordinary  course  of  law  'upon 


174  THE  ARMY  AND  THE  LAW 

is  by  way  of  inference  rather  than  of  quotation;  but, 
in  the  Hght  of  all  that  has  been  said,  it  is  submitted  that 
the  Petition  of  Right  can  be  read  only  as  the  Lord 
Chancellor  read  it. 

Much  has  been  written  on  the  subject.  The  decision 
in  Ex  parte  Marais,^^  of  which  more  will  be  said  pres- 
ently, evoked  a  most  valuable  symposium  of  articles  in 
the  English  Law  Quarterly  Review.^^  The  subject  has 
also  been  treated  exhaustively  by  American  writers,  to 
whom  the  reader  is  referred.^^  Some,'  like  Professor 
Dicey,  claim  that,  in  England  at  least,  there  can  be  no 
use  of  the  military,  independently  of  civil  control.  Other 
English  writers  argue  that  martial  law  survived  the  Pe- 
tition of  Right  as  a  measure  of  extreme  self-defense. 
The  American  writers  agree  that  martial  law  exists  with 
us,  but  whether  in  both  aspects  of  prevention  and  pun- 
pretence  that  the  said  offenders  were  punishable  onelie  by  martiall  lawe  and 
by  authoritie  of  such  commissions  as  aforesaid,  which  commissions  and  all 
other  of  like  nature  are  wholly  and  directlie  contrary  to  the  said  lawes  and 
statutes  of  this  your  realme'.  The  two  concluding  prayers  of  the  Petition  are 
as  follows:  'And  that  the  aforesaid  commissions  for  proceeding  by  martiall 
lawe  may  be  revoked  and  annulled.  And  that  hereafter  no  commissions  of 
like  nature  may  issue  forth  to  any  person  or  persons  whatsoever  to  be  exe- 
cuted as  aforesaid,  lest  by  colour  of  them  any  of  your  Majesties  subjects  be 
destroyed  or  put  to  death  contrary  to  the  lawes  and  franchise  of  the  land'. 
It  is  matter  of  historical  fact  that  there  was  not  any  state  of  war  at  the  times 
and  places  of  the  acts  complained  of.  The  words  'time  of  peace'  are  familiar 
in  the  Mutiny  (now  Army  Annual)  Act,  but  do  not  occur  in  the  Petition  of 
Right.— F.  P." 

«  Supra. 

*6 18  Law  Quarterly  Review,  152,  e/  seq.  Articles  by  Sir  Frederick  Pollock 
and  others;  Dicey,  Law  of  the  Constitution,  8th  ed.,  chapter  on  Martial 
Law,  and  Appendix. 

■•^  e.  g.,  the  chapter  on  Martial  Law  in  Davis,  Military  Law,  3d  edition; 
Birkhimer,  Military  Government  and  Martial  Law;  also  articles  by  Pro- 
fessor Ballantine,  12  Columbia  Law  Review,  529,  and  24  Yale  Law  Jour- 
nal, 189;  Col.  Clabaugh,  7  Illinois  Law  Review,  479;  Judge  Cullen,  48 
American  Law  Review,  345. 


MARTIAL  LAW  AT  HOME  175 

ishment  is  of  doubt  to  them.  The  EngHsh  writer,  H. 
Erie  Richards,^^  alleges  that  one  element  cannot  exist 
without  the  other;  that  there  can  be  no  preventive 
martial  law  without  a  co-ordinate  jurisdiction  of  mili- 
tary courts  to  punish  infractions  of  the  rules  established 
by  the  military  control. 

It  is  believed  that  all  these  points  are  met  by  the  facts 
of  the  history  leading  up  to  the  Petition  of  Right,  by  the 
accepted  practice  since  then,  and  by  the  decisions  of  the 
courts.  These  factors  give  us  certain  clear  results: 
First,  that  the  Petition  of  Right  had  nothing  to  do  with 
the  preventive  type  of  martial  law,  and,  so  far  as  that 
type  is  concerned,  the  history  just  narrated  does  not 
affect  its  constitutionality.  Second,  that  the  Petition 
of  Right,  so  far  as  it  condemned  the  punitive  feature  of 
martial  law,  related  only  to  its  use  in  time  of  peace, 
when  common  law  process  naturally  should  have  full 
sway. 

Preventive  martial  law  has  been  used  in  both  England 
and  this  country,  and  upheld  by  the  courts.  Nor  is  this 
contrary  to  any  reading  of  the  Petition  of  Right,  be- 
cause that  document  does  not  refer  to  the  preventive 
aspects  of  martial  law.  Its  denunciation  is  only  of  the 
jurisdictional  side;  it  proscribes  military  courts,  but  it 
says  nothing  of  any  feature  of  preventive  measures. 

In  the  century  following  that  of  the  Petition,  England 
used  preventive  measures  with  great  effect.  The  civil 
courts  were  wide  open,  yet,  by  legislative  action,  offen- 
ders of  a  certain  class  were  deprived  of  their  liberty  by 
military  force,  and  forbidden  recourse  to  the  writ  of 
habeas  corpus.    All  of  this  occurred  during  the  war  with 

«  18  L.  Q.  Review,  139- 


176         THE  ARMY  AND  THE  LAW 

revolutionary  France.  In  1794  Parliament  passed  a 
law,^^  which  was  continued  by  re-enactment  for  seven 
years,  and  then  followed  by  the  Indemnity  Act  to  which 
we  have  elsewhere  referred.^°  This  statute,  after  recit- 
ing the  prevalence  of  treasonable  conspiracies  "for  sub- 
verting the  existing  laws  and  constitution,"  provided 
that  any  person  arrested  under  a  warrant  signed  by  the 
King  and  six  Privy  Councillors  or  by  a  Secretary  of 
State,  for  "treasonable  practices"  shall  be  held  for  one 
year  "without  bail  or  mainprize,"  and  that  no  judge  or 
court  shall  release  him,  any  law  to  the  contrary  notwith- 
standing. This,  Lord  Shaw  has  recently  said  ^^  "was 
plain  language :  it  followed  constitutional  practice :  for 
some  months  and  in  defined  cases  the  Constitution  was 
suspended." 

The  present  war  furnished  an  even  more  striking  ex- 
ample. The  Defence  of  the  Realm  Act,  1914  ^^  provided 
three  things  of  interest  to  us:  (i)  It  authorizes  the  in- 
ternment of  any  person,  whether  British  subject  or  not, 
who  is  "of  hostile  origin  or  associations,"  on  the  recom- 
mendation of  a  competent  military  authority.  (2) 
As  amended  by  a  later  act,^^  the  statute  allows  the  trial 
by  court  martial  of  any  civilian  accused  of  treasonable 
practices  or  acts  of  espionage,  unless  within  five  days 
after  his  arrest,  the  accused  demands  a  jury  trial  in  a 
civil  court;  but  such  a  trial  must  be  in  secret  if  the 
Crown  so  requests.  (3)  But  even  this  right  of  jury  trial 
may  be  suspended  by  proclamation,  as  to  any  area 

"  34  Geo.  Ill,  c.  54. 

^o  41  Geo.  Ill,  c.  66;  Dicey  op.  cit.  231. 

w  Rex  V.  Halliday  (1917)  A.  C.  260;   116  L.  T.  417. 

M  S  Geo.  V,  c.  8. 

63  March  16,  1915,  S  Geo.  V,  c.  34. 


MARTIAL  LAW  AT  HOME  177 

designated  In  the  proclamation,  "In  the  event  of  invasion 
or  other  special  emergency  arising  out  of  the  present 
war."  In  any  such  proclaimed  area  the  trial  of  accused 
traitors  would  necessarily  be  by  court  martial,  and  so  a 
regulation,  framed  under  the  Act,  prescrlbes.^^  The 
whole  of  Ireland  was  so  proclaimed  by  Proclamation  of 
April  26,  1916.^5 

Such  is  the  statute  now  of  force  in  a  land  where, 
according  to  some  writers,  domestic  martial  law  is 
impossible!  True,  many  points  dear  to  the  legalist  are 
saved.  The  writ  of  habeas  corpus  is  not  literally  sus- 
pended as  against  an  interned  person;  he  can  have  it, 
but  the  civil  court,  after  reading  the  return,  would  have 
to  dismiss  the  writ.^^  True,  a  liege  accused  of  treason 
may  have  a  trial  in  a  civil  court,  but  he  must  demand  it 
within  five  days,  and  even  that  trial  must  be  secret,  if 
the  prosecution  so  requests.  And  finally,  while  the 
judgments  of  courts  martial  are  nowadays  reviewable 
by  the  Court  of  Criminal  Appeal, ^^  that  is  poor  consola- 
tion to  the  legalist  in  view  of  the  statute's  authorizing 
the  Crown  to  put  whole  areas  of  Britain  under  real 
martial  law  whenever,  in  its  judgment,  the  exigencies  of 
the  war  require  that  recourse.  Where  are  now  the 
theories  of  yesteryear? 

Most  fully,  too,  has  that  statute  been  upheld  by  the 
majority  of  the  House  of  Lords  in  the  recent  case  of 
Rex  V.  Halllday,''^  which  arose  on  an  interned  subject's 
application  for  a  writ  of  habeas  corpus.    Technically,  of 

"  Reg.  55d;   Official  Publication  of  May,  1917,  p.  7. 

"  Off.  Pub.,  supra,  p.  7. 

"  See  opinion  of  Lord  Atkinson  in  Rex  v.  Halliday,  supra, 

"  Supra,  Ch.  III. 

68  Supra. 


178  THE  ARMY  AND  THE  LAW 

course,  the  court  could  not  declare  the  statute  void; 
but  the  law  lords  seemed  to  think  that  they  could,  if 
they  pleased,  annul  the  operative  regulations  established 
under  the  statute.  This  they  declined  to  do,  holding 
that  nothing  in  these  regulations  offended  against 
English  constitutional  theories.  The  reasoning  of  Lord 
Atkinson  is  particularly  to  be  commended.  He  points 
out  that  it  is  no  new  thing  in  common  law  for  a  citizen 
to  be  deprived  of  liberty  or  even  property  if  he  comes 
within  a  certain  prescribed  class.  In  such  a  case,  the 
citizen  has  his  day  in  court  on  the  question  whether  he 
comes  within  the  class  in  question.  If  it  be  determined 
that  he  does,  he  stands  convicted  just  as  if  he  had  been 
convicted  as  a  murderer,  and  no  further  question  re- 
mains for  the  common  law  court  to  decide.  That  the 
legislature  may,  within  certain  limits,  create  such 
classes,  cannot  be  doubted.  As  an  example,  he  cites  the 
well  settled  practice  of  requiring  common  disturbers  to 
give  bail  to  keep  the  peace,  and  be  imprisoned  until  such 
bail  is  furnished — a  practice  which  goes  back  to  1360.^^ 
To  this  we  may  add  the  example  afforded  by  the  statute 
of  Winton,^°  which  authorizes  the  watch  of  any  town 
to  arrest  "night  walkers"  and  hold  them  in  the  town  jail 
until  full  day.^^  To  such  lengths  does  sound  common 
law  go  for  the  good  of  the  State ;  and  Lord  Atkinson's 
opinion  has  in  it  no  element  of  novelty  except  for  those 
whose  constitutional  theories  lack  a  background,  not 
merely  of  history,  but  of  the  plainer  facts  of  every-day 
practice. 

"  Stat.  34  Edw.  III.  c.  I. 
•"  13  Edw.  I,  Stat.  2,  c.  4. 
«  See  15  Vin.  Abr.  555;   title  "Night  Walkers." 


MARTIAL  LAW  AT  HOME  179 

Turn  we  now  to  our  own  country.  We  may  pass  over 
the  abuse  of  martial  law  of  which  General  Gage  in 
Boston  and  certain  royal  governors  were  guilty,  of  all  of 
which  the  dissentient  Justice  Woodbury  fully  informs 
us  in  Luther  v.  Borden, ^^  and  come  at  once  to  that  cele- 
brated case.  The  action  originated  in  the  United  States 
Circuit  Court  of  Rhode  Island,  being  founded  on  diver- 
sity of  citizenship.  The  plaintiff,  a  citizen  of  Massa- 
chusetts, sued  the  defendants,  citizens  of  Rhode  Island, 
for  trespass  for  entering  his  house.  The  defendants 
justified  under  a  declaration  of  martial  law,  made  by 
the  State's  legislature.  The  defendants  were  members 
of  an  infantry  company,  and  were  ordered  to  arrest  the 
plaintiff,  and  if  necessary  to  break  into  and  enter  his 
dwelling.  The  court  held  for  the  defendants.  The 
points  of  the  decision  were  these : 

1.  A  permanent  military  government  is  not  republican. 
But  when  intended  merely  for  a  crisis,  "and  to  meet  the  peril 
in  which  the  existing  government  is  placed  by  the  armed 
resistance  to  its  authority"  it  is  lawful. 

2.  The  test  is  whether  the  armed  insurrection  is  too 
"powerful  to  be  controlled  by  the  civil  authority." 

3.  The  decision  of  this  question  of  fact  is  with  the  State, 
rather  than  the  courts.  "The  State  itself  must  determine 
what  degree  of  force  the  crisis  demands." 

4.  The  methods  used  are  then  of  war,  and  governed  by 
the  laws  and  usage  of  war. 

It  will  be  observed  that  martial  law  was  presented  in 
Luther  v.  Borden  solely  in  its  preventive  phase;  the 
question  simply  being  whether  the  plaintiff  could  be 
arrested. 

«2  Supra. 


i8o  THE  ARMY  AND  THE  LAW 

The  next  case  in  the  order  of  history  presented,  on 
its  facts,  no  question  of  martial  law  at  all ;  but  the  dicta 
in  it  are  of  the  greatest  value.  These  dicta,  however,  let 
us  reserve  for  the  last,  taking  the  case  as  merely  dealing 
with  a  national  statute  providing  for  martial  law  of  the 
preventive  kind.    We  refer  to  Ex  parte  Milligan.^^ 

On  March  3,  1863,  the  United  States  Congress 
adopted  a  law  ^^  which  authorized  the  President  to  sus- 
pend the  writ  of  habeas  corpus  as  to  classes  of  disloyal 
persons,  and  in  territories,  to  be  designated  by  him.  The 
writ  being  suspended  as  to  persons  of  a  designated 
class,  they,  of  course,  could  be  put  under  military  arrest 
on  an  Executive  warrant,  and  thus  kept  without  inter- 
ference by  any  civil  court.  But  the  statute  also  re- 
quired that  lists  of  all  such  persons  who  were  citizens  of 
States  in  which  the  administration  of  the  laws  had  con- 
tinued unimpaired  in  the  Federal  courts,  should  be  fur- 
nished by  the  Secretary  of  State  and  Secretary  of  War 
to  the  judges  of  the  Federal  courts.  In  case  the  grand 
jury  in  attendance  upon  such  a  court  should  terminate 
its  session  without  indicting  any  such  prisoner,  the 
court  should  discharge  him  on  bail  to  keep  the  peace,  or 
to  appear,  to  be  further  dealt  with  according  to  law.  In 
case  of  default  in  the  furnishing  of  such  a  list  within 
twenty  days  after  the  time  of  arrest,  the  prisoner  might 
after  the  termination  of  a  session  of  the  grand  jury  with- 
out indictment,  obtain  an  order  of  discharge.  This 
statute  was  followed  by  a  proclamation  ^^  placing  in  a 
proscribed  class,  among  others,  all  "aiders  or  abettors 

6«  4  Wall  2. 
"  12  Stat.  755. 
«5  13  Stat.  734. 


MARTIAL  LAW  AT  HOME  i8i 

of  the  enemy,"  and  persons  committing  any  "offense 
against  the  miHtary  or  naval  service." 

The  petitioner,  a  resident  of  Indiana,  was  arrested 
on  October  5,  1864,  by  order  of  the  general  commanding 
the  military  district  of  Indiana;  and  on  October  21,  he 
was  placed  on  trial  before  a  military  commission  con- 
vened by  that  general's  order.  The  charges  were  con- 
spiracy, affording  aid  and  comfort  to  the  enemy,  inciting 
insurrection,  disloyal  practices,  and  violation  of  the  laws 
of  war.  The  specification  was  that  the  petitioner  joined 
and  aided  a  secret  society,  known  as  the  Order  of  Ameri- 
can Knights,  or  Sons  of  Liberty,  for  the  purpose  of  over- 
throwing the  government,  holding  communication  with 
the  enemy,  conspiring  to  seize  munitions  of  war,  etc., 
and  resisting  the  draft.  He  was  convicted  and  sen- 
tenced to  be  executed  on  May  19,  1865.  On  May  10  he 
applied  for  a  writ  of  habeas  corpus.  The  judges  of  the 
United  States  Circuit  Court  being  divided  in  opinion, 
the  case  was  certified  to  the  Supreme  Court.  The  court 
held  that  the  prisoner  was  entitled  to  his  discharge.  The 
judges  differed  radically  in  opinion  on  certain  points 
which  we  will  hereafter  note;  but  the  actual  decision, 
in  which  all  concurred,  was  that  the  statute  governed 
the  situation.  The  statute  had  not  been  complied  with, 
inasmuch  as  Milligan's  name  had  not  been  furnished  to 
the  local  Federal  court,  and,  the  grand  jury  of  that 
court  having  completed  its  session  without  indicting 
him,  the  petitioner  was  entitled  to  an  enlargement  from 
his  prison  without  consideration  of  any  other  point. 
The  actual  decision  then  is  that,  in  the  absence  of  spe- 
cial circumstances,  the  presence  of  a  statute  providing 
for  preventive  measures  excludes  the  exercise,  by  execu- 


I82  THE  ARMY  AND  THE  LAW 

tive  authority  or  otherwise,  of  the  punitive  phase  of 
martial  law. 

So  far  as  the  preventive  feature  of  martial  law  is  con- 
cerned, however,  no  statute  Is  necessary.  If  any  doc- 
trine can  be  said  to  be  clearly  settled  in  this  country  at 
the  present  day,  it  is  that  the  State  has  the  power 
to  do  two  things.  First,  It  may  determine  whether 
there  Is  the  necessity  for  declaring  a  state  of  martial  law, 
and  this  determination  is  an  act  of  state  which  cannot 
be  judicially  reviewed.  This  judgment  having  been 
formed,  the  State  may  put  It  in  force  by  the  use  of 
preventive  measures  of  the  kinds  already  mentioned, 
protection  of  property  and  works,  dissolution  of  mobs, 
and  detention  of  persons ;  ^^  and  all  of  this  free  from  the 
direction  of  the  civil  authorities  or  review  by  the  courts. 

That  this  may  be  done  by  the  governor  of  a  State  is 
clearly  settled  by  American  authority ;  ^^  whatever  may 
have  once  been  the  conception  of  the  law  in  England, 
that,  at  least  of  late  years,  has  become  our  law.^^  Nor 
does  the  governor's  exercise  of  this  power  infringe  any 
rights  guaranteed  by  the  Federal  constitution.  Such 
was  the  decision,  as  we  saw,  in  Luther  v.  Borden,^^  but 
certain  theories  ingerminated  by  the  majority  opinion 

w  In  Hatfield  v.  Graham,  73  W.  Va.  509,  81  S.  E.  533,  this  power  was 
extended  to  the  suppression  of  a  seditious  newspaper. 

"  Nance  v.  Brown,  71  W.  Va.  519,  77  S.  E.  243;  Exp.  Jones,  71  W.  Va. 
567,  77  S.  E.  1029;  Exp.  McDonald,  49  Mont.  454,  143  Pac.  947;  Com.  v. 
Shortall,  206  Pa.  St.  165,  55  At.  952;  Re  Boyle,  6  Idaho  609,  57  Pac.  706; 
Re  Moyer,  35  Colo.  159  85  Pac.  190.  In  some  States  statutes  authorize 
the  judge  of  any  superior  court  to  exercise  the  same  power.  See  Ela 
etc.,  V.  Smith,  5  Gray  121;   People  v.  Bard  209  N.  Y.  304,  103  N.  E.  140. 

^8  Professor  Ballantine,  writing  in  191 2,  considers  that  there  is  a  difference 
in  this  respect,  between  the  English  and  the  American  view.  12  Columbia 
Law  Review,  529. 

«9  Supra.    • 


MARTIAL  LAW  AT  HOME  -  1 83 

in  Ex  parte  Milligan,'^^  of  which  hereafter,  led  to  a  fresh 
challenge  of  the  proposition.  But  in  Moyer  v.  Peabody  ^^ 
the  question  was  settled  once  for  all.  That  was  an  ac- 
tion for  false  imprisonment,  the  defendants  being  the 
former  governor  of  Colorado,  the  former  adjutant  gen- 
eral of  the  Colorado  national  guard,  and  a  captain  in  a 
company  of  the  national  guard.  The  complaint  alleged 
that  the  defendants  justified  the  imprisonment  under 
the  constitution  of  Colorado,  which  made  the  governor 
commander  in  chief  of  the  State  forces,  and  gave  him 
power  to  call  them  out  to  execute  laws,  suppress  insur- 
rection and  repel  invasion.  The  governor  had  declared 
a  county  to  be  in  a  state  of  insurrection,  had  called  out 
the  militia,  and  had  ordered  the  military  arrest  of  the 
plaintiff  as  a  leader  of  the  outbreak,  directing  that  he  be 
detained  until  he  could  be  released  with  safety.  The 
court  held,  on  demurrer,  that  this  complaint  stated  no 
cause  of  action.  The  court  said  that  the  governor  had 
power  "to  kill  persons  who  resist,  and,  of  course,  to  use 
the  milder  measure  of  seizing  the  bodies  of  those  whom 
he  considers  to  stand  in  the  way  of  restoring  peace." 
Then  Holmes,  J.,  who  spoke  for  the  court,  gave  the 
whole  philosophy  of  the  matter  in  these  words: 

Such  arrests  are  not  necessarily  for  punishment,  but  are 
by  way  of  precaution,  to  prevent  the  exercise  of  hostile 
power.  So  long  as  such  arrests  are  made  in  good  faith  and 
in  the  honest  belief  that  they  are  needed  in  order  to  head  the 
insurrection  off,  the  governor  is  the  final  judge  and  cannot 
be  subjected  to  an  action  after  he  is  out  of  office,  on  the 
ground  that  he  had  not  reasonable  ground  for  his  belief. 
.     .     .  No  doubt  there  are  cases  where  the  expert  on  the 

70  Supra. 

71  212  U.  S.  78,  29  Sup.  Ct.  Rep.  235. 


I84  THE  ARMY  AND  THE  LAW 

spot  may  be  called  upon  to  justify  his  conduct  later  in 
court,  notwithstanding  the  fact  that  he  had  sole  command 
at  the  time  and  acted  to  the  best  of  his  knowledge.  That  is 
the  position  of  a  captain  of  a  ship.  But,  even  in  that  case, 
great  weight  is  given  to  his  determination,  and  the  matter  is 
to  be  judged  on  the  facts  as  they  appeared  then,  and  not 
merely  in  the  light  of  the  event.  .  .  When  it  comes  to  a 
decision  by  the  head  of  the  state  upon  a  matter  involving  its 
life,  the  ordinary  rights  of  individuals  must  yield  to  what  he 
deems  the  necessities  of  the  moment.  Public  danger  war- 
rants the  substitution  of  executive  process  for  judicial 
process.  .  .  This  was  admitted  with  regard  to  killing 
men  in  the  actual  clash  of  arms;  and  we  think  it  obvious, 
although  it  is  disputed,  that  the  same  is  true  of  temporary 
detention  to  prevent  apprehended  harm.  As  no  one  would 
deny  that  there  was  immunity  for  ordering  a  company  to 
fire  upon  a  mob  in  insurrection,  and  that  a  state  law  author- 
izing the  governor  to  deprive  citizens  of  life  under  such 
circumstances  was  consistent  with  the  Fourteenth  Amend- 
ment, we  are  of  opinion  that  the  same  is  true  of  a  law  author- 
izing by  implication  what  was  done  in  this  case. 

The  same  proposition  applies  to  the  Federal  govern- 
ment. In  the  enforcement  of  the  peace  of  the  republic, 
it  can  use  all  the  force  it  can  command.  If  it  chooses  it 
may  resort  to  the  mild  measure  of  a  suit  in  equity,  ter- 
minating in  a  writ  of  injunction  against  the  disturbers. 
But  in  Re  Debs  ^^  where  that  holding  was  made,  the 
court  was  careful  to  say  that  any  such  remedy  was  but 
cumulative.  Whatever  a  State  of  the  Union  can  do  in 
the  protection  of  its  right  of  existence,  the  government 
also  can  do. 

It  only  remains  to  deal  with  two  questions. 

»  Supra. 


MARTIAL  LAW  AT  HOME  185 

The  first,  is  whether  preventive  martial  law,  or  qualified 
martial  law,  as  it  is  styled  in  one  of  the  decisions  up- 
holding its  use,^^  can  be  established  merely  by  executive 
order.  In  the  decisions  of  State  courts  already  dis- 
cussed, this  power  was  uniformly  of  executive  exer- 
cise, and  upheld  as  such.  It  is  not  so  clear  with  the 
Federal  government.  An  able  authority  ^^  argues  that 
such  power  belongs  only  to  the  Executive,  as  a  war 
power  of  necessary  implication.  That  does  not  carry 
us  far,  because  Congress  also  has  war  powers;  and,  so 
far  as  decisions  go,  they  favor  the  location  of  this  power 
with  Congress. "^^  These  decisions  are  in  line  with  the 
opinion  of  Professor  Dicey,  who  justifies  an  act  of 
indemnity  as  a  legislative  act  legalizing  a  state  of  martial 
law,  and,  therefore,  ex  post  facto  ratifying  it.^^  It  follows, 
of  course,  that  the  legislature  may  establish  martial  law, 
which  leaves  little  room  for  the  view  that  martial  law 
is  foreign  to  the  English  constitution. 

The  remaining  question  is  whether  the  punitive  fea- 
ture of  martial  law  may  constitutionally  be  established. 
This  was  the  feature  that  was  explicitly  named  in  the 
Petition  of  Right.  The  preventive  aspect  was  not  so 
named,  and,  as  we  have  seen,  martial  law  to  that  ex- 
tent is  part  of  our  system  and  that  of  England.  Is  the 
punitive  feature  forbidden? 

There  is  authority  for  the  contention  that  punitive 
martial  law  cannot  be  established  outside  of  the  thea- 

73  Com.  V.  Shortall,  supra. 

''*  2  Hare,  Constitutional  Law  968;   see  contra  Birkhimer,  op.  cit.  38, 

75  Exp.  Field,  5  Blatch.  63,  Fed.  Case  4761;  Re  Winder,  2  Cliff  89,  Fed. 
Case  17867;  Jones  v.  Seward,  40  Barb.  563.  Exp.  Merryman,  Taney  246, 
F^d.  Case  9487,  should  not  be  considered  an  authority,  because,  just  as  in 
Wolfe  Tone's  Case  {supra,  Ch.  V)  the  army  was  not  heard. 

'8  Dicey,  op.  cit.  233. 


I86  THE  ARMY  AND  THE  LAW 

ter  of  war.  To  that  effect  was  the  ohiter  portion  of  the 
majority  opinion  in  Ex  parte  Milligan;^^  the  test  they 
suggested  being  whether,  at  the  time  of  the  proclama- 
tion, the  civil  courts  were  open  in  the  region  affected. 
On  the  other  side  of  the  border  Alexander  H.  Stephens 
was  declaiming  to  the  same  effect.  Objecting  to  the 
Confederate  statute  allowing  complete  martial  law  in 
theaters  of  war,  Mr.  Stephens  declared  that  "Congress 
may  suspend  the  writ  of  habeas  corpus,  but  that  is  the 
utmost  to  which  they  can  go."^^  But  the  force  of  Mr. 
Stephens'  objection  was  weakened  by  his  later  conduct. 
In  February  of  1864  the  Confederate  Congress,  on  the 
recommendation  of  President  Davis  ^^  passed  a  statute 
somewhat  similar  to  that  involved  in  the  Milligan  case. 
Thereupon  Mr.  Stephens  led  the  chorus  of  denunciation, 
despite  the  fact  that  a  congressman  from  his  own  State 
had  introduced  the  bill.^^  But  such  as  it  was,  we  have 
Mr.  Stephens*  earlier  opinion  in  favor  of  preventive 
martial  law,  but  denouncing  the  punitive  variety.  In 
recent  years  a  State  court  has  decided  that  very  point; 

"  Exp.  Milligan,  4  Wall.  2. 

'8  Pendleton,  Life  of  Stephens,  296. 

7'  I  Messages  and  Papers  of  the  Confederacy,  395. 

8°  See  Pendleton,  op.  cit.  313;  Cleveland,  Life  of  Stephens,  761;  Fielder, 
Life  of  Joseph  E.  Brown,  281 ;  Stephens,  War  between  the  States,  vol.  2,  778; 
Correspondence  of  Brown,  Stephens,  et  al.  Annual  Reports  of  American 
Historical  Society,  191 1,  vol.  2,  633,  sq.  The  bill  was  ably  defended  by  Ben- 
jamin H.  Hill  of  Georgia,  later  United  States  Senator  (Correspondence,  supra, 
635).  Contemporary  opinion  of  Brown  and  Stephens,  held  by  those  respon- 
sible members  of  the  Confederacy  who  dealt  with  realities  instead  of  shad- 
ows, was  picturesquely  expressed  by  Gen.  Howell  Cobb  in  Correspondence, 
supra  640.  The  attitude  of  Brown  and  Stephens  on  this  subject  induced 
General  Sherman  to  invite  them  to  consider  a  suspension  of  arms  on  Georgia's 
part — a  separate  peace,  as  it  were.  Governor  Brown  hotly  declined  the  invi- 
tation, but  Mr.  Stephens'  reply  was  of  a  more  temperate,  if  not  temporizing 
variety  (Pendleton,  op.  cit.  323-324). 


MARTIAL  LAW  AT  HOME  187 

preventive  martial  law  is  possible  with  us,  but  punitive 
never,  except  when  the  civil  courts  are  closed. ^^ 

Yet  during  the  Civil  War  punitive  jurisdiction  be- 
came apparent.  The  commanders  of  certain  districts, 
under  direction  of  the  Executive,  established  military 
commissions  and  put  persons  before  them  for  trial  as 
traitorous  or  seditious  offenders  against  the  laws  of 
war.^^  The  copperhead,  Vallandigham,  was  tried  before 
such  a  commission  in  Ohio,  in  1863.  Instead  of  testing 
the  validity  of  the  proceedings  by  habeas  corpus,  as  did 
Milligan,  Vallandigham  applied  to  the  Supreme  Court 
for  a  writ  of  certiorari.  This  was  refused,  for  reasons 
which,  discussed  elsewhere, ^^  do  not  touch  the  point  of 
present  interest.  Nor  did  Mi'lligan's  case  really  present 
the  point,  as  we  have  already  seen.  Nevertheless,  the 
majority  of  the  court,  in  the  Milligan  case,  proceeded 
to  express  themselves  against  the  validity  of  martial  law 
in  any  territory  where  the  civil  courts  were  open. 

This  dictum,  concurred  in  by  five  ^^  out  of  the  nine 
justices,  stung  the  chief  justice  and  three  of  his  associ- 
ates ^^  into  a  most  strenuous  counter-dictum.  While  the 
instant  case  was  governed  by  the  act  of  Congress  in 
force.  Congress,  had  it  so  pleased,  could  have  gone 
much  further.  ^What  we  do  maintain  is,"  said  these 
four  dissentients,  "that  when  the  nation  is  involved  in 
war,  and  some  portions  of  the  country  are  invaded,  and 
all  are  exposed  to  invasion,  it  is  within  the  power  of 

81  Exp.  McDonald,  49  Mont.  454,  143  Pac.  947. 

82  The  first  commission  was  established  by  General  Fremont  in  St.  Louis 
in  the  autumn  of  1861.    Davis,  Military  Law,  3d  ed.,  308  n. 

^^  Exp.  Vallandigham,  i  Wall.  243;  supra  Ch.  IV. 

8*  Davis,  Nelson,  Clifford,  Field,  Grier,  J.  J. 

"  Chase,  C.  J.,  Wayne,  Swayne  and  Miller,  J.  J. 


I88  THE  ARMY  AND  THE  LAW 

Congress  to  determine  in  what  States  or  Districts  such 
great  and  imminent  public  danger  exists  as  justifies  the 
authorization  of  military  tribunals  for  the  trial  of  crimes 
and  offenses  against  the  discipline  or  security  of  the 
army,  or  against  the  public  safety."  ^^ 

There,  it  is  submitted,  is  the  sound  view.  Punitive 
martial  law  was  denounced  in  terms  by  the  Petition  of 
Right;  but  that  pronouncement  looks  back  to  history. 
The  history  we  have  already  examined  shows  that  the 
abuse  at  which  the  Petition  was  aimed  was  the  unneces- 
sary use  of  the  military  courts,  and  that  the  test  of 
necessity  lay  entirely  in  whether  conditions  of  war 
existed.  "In  time  of  peace" — that  was  the  test.  But 
when  war  is  flagrant,  and  a  portion  of  the  country  is  en- 
dangered by  acts  of  war,  then  it  does  not  violate  any 
historical  consideration  to  put  military  courts  in  control 
of  vindicatory  justice  so  far  as  it  may  apply  to  acts 
endangering  the  operations  of  the  nation's  armed  forces. 
The  fact  that  the  culprit  may  be  a  citizen  of  ours  should 
not  shield  him.  In  the  ,moment  of  public  danger  his 
constitutional  rights  must  yield  to  the  peril,  threaten- 
ing the  constitution  itself,  for  in  a  situation  of  that  sort 
the  army  constitutes  the  last  bulwark  of  the  State,  and, 
therefore,  of  the  Constitution.  Such,  in  essence,  is  the 
minority's  reasoning  in  Exp.  Milligan. 

The  point  discussed  in  these  dicta  and  counter-dicta 
remained  undetermined  until  the  Boer  War  brought 
in  its  train  a  square  decision  of  the  Privy  Council.  This, 
the  highest  court  of  appeal  for  the  British  Empire — 
outside  of  England,  Scotland  and  Ireland,  whose  ulti- 
mate appellate  court  is  the  House  of  Lords — had  to  deal 

^Ex  parte  Milligan,  supra. 


MARTIAL  LAW  AT  HOME  189 

with  the  same  question  of  punitive  martial  law  that  the 
judges  discussed  in  the  Milligan  case.  In  Ex  parte 
Marais^^  the  petitioner,  a  British  subject,  was  taken 
into  military  custody,  for  trial  by  court  martial.  He 
was  arrested  at  his  home,  thirty-five  miles  from  Cape 
Town,  and  carried  a  distance  of  three  hundred  miles  to 
Beaufort  West.  This  was  in  the  latter  part  of  1901 ,  long 
after  the  relief  of  Ladysmith  and  the  other  border  for- 
tresses; and  the  war  was  then  in  a  guerilla  stage.  Mar- 
tial law  had  been  proclaimed  over  the  district  in  which 
the  petitioner  was  arrested,  and  also  that  to  which  he 
was  removed,  but  the  civil  courts  were  open.  The  pe- 
titioner's application,  by  way  of  habeas  corpus,  being 
refused,  he  petitioned  the  Privy  Council  for  leave  to 
appeal.  The  court  denied  the  petition  in  an  opinion 
which  said  that  "where  actual  war  is  raging  acts  done  by 
the  military  authorities  are  not  justiceable  by  the  ordi- 
nary tribunals." 

That  is  true,  but  It  seems  questionable  whether  three 
hundred  miles  of  Cape  Colony  could  accurately  have 
been  described  in  190 1  as  a  theater  of  actual  operations. 
On  the  language  of  the  opinion  the  case  belongs  to  a 
category  we  discussed  in  Chapter  IX ;  on  its  facts,  and 
in  its  general  acceptation,^^  this  case  adopts  the  view 
taken  by  the  minority  In  the  case  of  Milligan.  And 
although  the  decision  in  Ex  parte  Marais  does  not  ob- 
tain as  law  In  England,  Scotland  and  Ireland,  yet  the 
provision  of  the  Defence  of  the  Realm  Act,  19 14,  al- 
ready mentioned,  permitting  the  government  to  pro- 
claim complete  martial  law,  punitive  as  well  as  pre- 

"  1902  A.  C.  109. 

8«  See  the  symposium  in  the  eighteenth  volume  of  the  Law  Quarterly 
Review,  cited  supra. 


I90  THE  ARMY  AND  THE  LAW 

ventive,  in  any  area  exposed  to  danger,  shows  that 
the  ParHament,  whose  predecessor  presented  the  Peti- 
tion of  Right,  now  construes  that  document  as  applying 
only  to  the  use  of  martial  law  in  time  of  peace.  The 
minority  opinion  in  the  Milligan  case  has  thus,  in  the 
fulness  of  time,  received  acceptation  within  all  the 
bounds  of  the  British  Empire. 

Our  legislation  in  the  present  war,  in  the  shape  of  the 
Espionage  and  Trading  with  the  Enemy  Acts,  has  made 
indictable  crimes,  triable  in  the  civil  courts,  of  many 
acts  such  as  those  dealt  with  in  cases  like  Vallandig- 
ham's  and  Milligan's.^^  But  enough  has  been  said,  it  is 
hoped,  to  show  that  it  is  wholly  immaterial  whether  a 
criminal  statute  covers  the  hostile  acts  in  question. 
Criminal  statutes  are  for  the  criminal  courts,  whereas 
the  very  proclamation  of  martial  law  means  that  a 
situation  exists  which  criminal  courts  cannot  handle. 
The  question,  in  any  such  case,  is  simply  whether  the 
government  is  powerless,  because  of  fancied  limitations 
inherent  in  our  Constitution,  to  take  the  necessary 
steps  to  protect  the  Constitution  itself.  It  can  hardly 
be  doubted  that,  in  any  such  case,  the  view  of  the 
minority  in  the  Milligan  case,  will  prevail.  Opposition 
to  that  view  rests  on  superstition  rather  than  sound 
tradition ;  and  superstition  is  not  a  part  of  the  common 
law,  of  whose  very  life  is  historical  truth. 

89  See  article  in  the  Forum,  February,  1918,  by  Hon.  Wm.  H.  Lamar, 
Solicitor  to  the  Post-office  Department. 


TABLE  OF  CASES 


Ableman  v.  Booth 45 

Alexander's  Cotton  .  ,  81,118 
Am.  Ins.  Co.  v.  Canter   .    .    .   loi 

Andre's  Case 85 

Angelus  v.  Sullivan  ....  58 
Antoine  v.  Morshead  ....     87 

Antrim's  Case      58 

Arver  z;.  U.  S 18,  19,  20 

Astrea,  The  .    .    .    .    .    .  114,  115 

Atkinson  v.  Central  Co.     .    .   116 

Bailey  v.  Warden 51 

Barrett  r.  Crane 57 

Barwis  v.  Keppel 52 

Bates  V.  Clark 

54,  130,  133,  134,  151 
Bean  v.  Beckwith    .    .    .   128,  140 

Beard  v.  Butts 154 

Beckwith  v.  Bean    .  128,  134,  136 

Belknap  v.  Schild 137 

Bell  V.  Gilson 66 

Blackington  v.V.S 58 

Bowditch  V.  Boston     .    .  144,  146 

Boyle,  Re      182 

Brown  v.  U.  S. .  .  65,  80,  87,  115 
Burdett  v.  Abbot  .  .  6,  164,  165 
Buron  v.  Denman    .    .    .  123,  139 

Cadwalader,  Re 59 

Carlisle  z^.  U.  S 81 

Carter  v.  McClaughry 

35,  40,  44,  58,  60 

Carter  v.  Roberts  Co.     ...     60 

Chegaray  v.  Jenkins    .  46,  47,  133 

Coleman  v.  Tennessee     .    .    .    59, 

60,  73,  85,  91,  92,  93,  98,  99,  102 


Com.  V.  Shortall  .    . 
Confiscation  Cases  . 
Coolidge  V.  Guthrie 
Cramp  v.  Int.  Curtis  Co 
Cross  V.  Harrison     . 


182,  185 
.  .  Ill 
.  •  95 
.  .  138 
99,  100 


Cunningham  v.  Railroad  Co.  129 

Daimler   Co.   v.   Continental 

Tire  Co 67,  68,  77 

Dawkins  v.  Lord  Rokeby  .    .     49 

Debs,  Re 164,  165,  184 

De  Lima  v.  Bidwell     .    .     99,  loi 

De  Lacey  t;.  U.  S 89 

Dewing  v.  Perdicaries  .  77,  109 
Dillingham  v.  Booker  ...  22 
Dinsman  v.  Wilkes  50,  130,  132 
Dostal,  Ex  parte  22,  23,  24,  26,  58 
Dow  V.  Johnson  70,  71,  72,  73,  91 
94,  98,  104,  105,  106,  121,  122 

Duden  v.  Maloy 62 

Dunakin,  Ex  Parte      ....     22 
Dynes  v.  Hoover  44,  55,  56,  57,  58 

Egan,  Re 103 

Ela  V.  Smith 182 

Elphinstone  v.  Bedeechrund 

95,96,97,  116,  117,  121 

Evans  v.  Richardson  ....  67 

Exchange,  The 91 

Exposito  V.  Bowden    ....  67 

Fair,  Re 61 

Field,  Ex  parte 

45,  133,  139,  167,  185 
Fleming  v.  Page  .  .  99,  100,  1 01 
Ford  V.  Surget   73,  77,  95,  96,  149 


192 


TABLE  OF  CASES 


Frank  v. Murray  .....  58 
Franklin  r.  U.  S.     ....  59,  60 

Gambler's  Case 130 

Gates  V.  Goodloe .    .    .    .  121,125 

Gerasimo,  The 79 

Gerlach,  Ex  parte 28 

Graber,  Ex  parte 87 

Grafton  y.  U.  S 61,  92 

Grant  v.  Gould 44f  57 

Grant,  Re 127 

Grapeshot,  The 104 

Grimley,  Re     3,  20,  22,  23,  24,  58 

Gugel  V.  Hiscox 62 

Gutenfels,  The 78 

Hamilton  v.  Dillon  ...  8,  70 
Handlin  v.  Wickliffe    .    .    .    .104 

Harrison  v.  Myers 121 

Hatfield  v.  Graham  .  .  .  .182 
Hefferman  v.  Porter  .  .  .  .104 
Henkel  v.  Royal  Ins.  Co.  .  .  66 
Herrera  v.  U.  S. 

95,  121,  122,  125,  139 
Hewitt,  Ex  parte     .    .    .    .    .   103 

Hoop,  The 66,  67,  70 

Houston  V.  Moore 25 

Hubbard,  Ex  parte  ....  22 
Huflfi;.  Odom 116 

Janson  v.  Dreifontein  Mines  .     64 

Jeffers  v.  Fair 18,  19 

Johnson  v.  Sutton    .    .     49,  50,  53 

Jones,  Ex  parte 182 

Jones  V.  Seward 85 

Keighley  v.  Bell 46 

King,  Ex  parte 60 

Kirki>.  Lynd no 

Kirkman  v.  McClaughry 

34,  35,  44 
Krekeler  v.  Ritter 62 


Lamar  v.  Browne     .    .    64,  76,  80, 
95,  96,  113,  114,  118,  123,  124 

Le  Caux  v.  Eden 113 

Leitensdorfer  v.  Webb  ...  104 
Little  V.  Barreme 

47,48,64,  113,  130 
Lords  Presidents,  Case  of  the 

169,  170 
Luther  v.  Borden 

30,  166,  168,  170,  179,  182 

McArdle,  Re 103 

McCall  V.  McDowell 

132,  136,  139,  141,  154 

McCall,  Re 26 

McConnell  v.  Hector  ....  ^7 
McDonaXd,  Ex  parte  .  .  182,187 
McGorray  v.  Murphy  ...  22 
McKee  v.V.S 69 

Marais,  Ex  parte  .  150,  173,  189 
Marconi  Wireless  Co.  v.  Simon  138 
Martin  v.  Mott    .    .  34,  48,  55,  87 

Martin,  Re 39 

Mason,  Ex  parte  .  .  .  .  60,  61 
Meigs  V.  McClung  .  .  .  129,  137 
Merryman,  Ex  parte  .    .    .    .185 

Mighell  V.  Sultan 6 

Miller  V.  U.  S. 

77,  109,  no,  112,  124 

Milligan,  Ex  parte 103, 

150,  158,  180,  183,  186,  187,  188 

Milligan  v.  Hovey 141 

Mills  V.  Martin 25 

Mitchell  i;.  Clark 

140,  154,  155  156 
Mitchell  V.  Harmony 

69,  70,  133,  136,  148 
Morrissey,  Re  .  .  .  3,  20,  21,  22 
Mostyn  v,  Fabrigas     .    .    .    .130 

Mouse's  Case 144 

Moyer  v.  Peabody  .  .  .  132,  183 
Moyer,  Re 182 


TABLE  OF  CASES 


193 


Nance  v.  Brown 182 

Neely  v.  Henkel 99 

Neill,  Re 45 

New  Orleans  v.  S.  S.  Co.      .    .  100 

Oetjen  v.  Cent.  Leather  Co.  .   122 
O'Reilly  v.  Brooke 

95,  122,  123,  139,  140 
Ouachita  Cotton,  The    ...     69 

Paradine  v.  Jayne 15 

Penny  wit  v.  Eaton 104 

People  V.  Bard 182 

Pepin  V.  Lachenmeyer    .    .    .104 
Petition  of  Right,  Re  a 

138.  139.  146,  147,  148 

Phelps  V.  Aldujo 135 

Planters'  Bank  v.  Union  Bank 

117,  120,  125 

Poe,  Re 44 

Porret's  Case 34 

Porter  v.  Freudenberg    .    .  77,  87 

Potts  V.  Bell 67 

Prerogative,  Case  of  the 

144,  145,  146 
Prize  Cases  .    .   65,  68,  72,  77,  80 

Protector,  The 64 

Pugh  t;.  U.  S 146 

Rapid,  The 33,  80 

Raymond  v.  Thomas 

106,  107,  122,  151 

Reed,  Ex  parte 57 

Reform,  The 69 

Rex  V.  Beal 59 

Rex  V.  Halliday   .    .    .    .   176,  177 

Rex  V.  Hampden 145 

Rex  V.  Kennett 164 

Rex  V.  Kupfer      68 

Rex  V.  Pinney 164,  165 

Rex  V.  Rotherfield  Grays   .    .     20 
Rex  V.  Suddis 44i  57 


Rex  V.  Vine  St.  Police  Station  82 

Rex  V.  Wall 41 

Ribas  y  Hijo  v.  U.  S. 

95,  121,  122,  139 

Rigand  v.  Am.  Metal  Co.  .    .  122 

Riggs  V.  State 47 

Robson  V.  Premier  Oil  Co.     .  68 

Savacool  v.  Boughton     .     47,  133 

Sea  Lion,  The 69 

Selective  Draft  Cases  18,  19,  20 
Ship  Money,  Case  of  ...    .   145 

Siebold,  Ex  parte 55 

Smith's  Case 159 

Smith  V.  Shaw      ....     47,  133 

Smith  V.  Whitney 34 

Stanley  v.  Schwalby  .  .  .  .129 
Summertime  v.  Local  Board  .  58 
Sutton  V.  Johnson   .    .    49,  50,  53 

Tarble's  Case 45 

Taylor  v.  Barclay 6 

Three  Spanish  Sailors,  Case  of  82 
Thirty  Hogsheads  of  Sugar  78,  114 

Tone's  Case 83,  185 

Troiana,  Ex  parte 58 

Tyler  v.  Defrees 124 

Underhill  v.  Hernandez  ...       6 

U.  S.  V.  Clark 47,  61 

U.  S.  V.  Clark 62 

U.  S.  V.  Cottingham    ....     24 

U.  S.  V.  Cutler 47 

U.  S.  V.  Davis 103 

U.  S.  V.  Dunnington    .    .    .    .110 

U.  S.  V.  Huckabee 116 

U.  S.  V.  Kimball 146 

U.  S.  V.  Kinkead 58 

U.  S.  V.  Klein  .  .  .  iii,  116,  124 
U.  S.  V.  Lee  .    .   129, 138,  139,  146 

U.  S.  V.  Lewis 60,  61 

U.  S.  V.  Lipsett 61 


194 


TABLE  OF  CASES 


U.  S.  V.  O'Keefe 8i 

U.  S.v.  Padelford    ...     8i,  iii 

U.  S.  V.  Palmer 6 

U.  S.  V.  Rice i8,  78 

U.  S.  V.  Russell  139,  146,  147,  148 
U.  S.  V.  Williford 22 

Vallandigham,  Ex  parte 

32,  57,  103,  187 
Vavasseur  v.  Krupp  .  .  .  .138 
Venice,  The      125 

Wallis  V.  Alford 95 

Wall's  Case 41 


Warden  v.  Bailey 
Wilcox  V.  Jackson 
William  Bagaley,  The 
Williams  v.  Bruffy  . 
Winder,  Re  ...  . 
Wingfield  v.  Crosby 
Wise  V.  Withers  .  . 
Wolfe  Tone's  Case 
Worthy  v.  Kinamon 
Wright  V.  Fitzgerald 


Young  V.  U.  S.     .    80,  81,  82,  112 
Zamora,  The    .    .    .    66,113,146 


35 

>,  51 

.  ] 

29, 

137 
80 

77 
185 

lOI 

44,  55.  46 

.  83. 

185 

.  .  . 

116 

.  ] 

52, 

153 

INDEX 


Actions,  see  Suits 

Acts,  captured  and  abandoned 
property,  8i,  124;  confiscation, 
109,  124;  of  moratorium,  127; 
of  indemnity,  136,  140,  153 

Angary,  right  of,  145 

Army,  as  an  institution,  2,  19; 
relation  of,  to  common  law,  4; 
composition  of,  7,  9;  standing, 
history  of,  10;  uses  of,  in  time 
of  peace,  8,  164;  use  of,  in  time 
of  war,  64;  use  of,  as  ancillary 
to  civil  power,  165;  see  Martial 
Law 

Army  Regulations,  position  of,  in 
military  law,  31 

Articles  of  War,  as  codifying 
military  law,  27;  application, 
28;  in  British  service,  29;  as 
applying  to  spy,  30;  classifica- 
tion of  offenses  under,  31 

Capture,  on  land,  in;  as  distinct 
from  maritime  prize,  112;  pos- 
session as  a  requisite,  115;  title 
to  public  and  private  property 
distinguished,  116;  as  subserv- 
ing war  purposes,  117;  see 
Requisitions  and  Contributions 

Civil  Courts,  jurisdiction  of  State 
and  Federal,  45, 60;  jurisdiction 
of  controversy  involving  mili- 
tary offense,  43,  52;  power  of 
determining  court  martial's  jur- 
isdiction, 54;  direct  review  im- 
possible, 57;    concurrent  juris- 


diction with  court  martial,  59; 
jurisdiction  of  suit  by  enemy 
combatant,  85 ;  of  enemy  coun- 
try, no  jurisdiction  over  our 
troops,  94;  of  enemy  country, 
under  military  occupation,  loi; 
jurisdiction  of  suit  by  civilian 
against  soldier,  128 

Common  Law,  relation  of,  to 
army,  4 

Confederacy,  conscription  in,  18; 
as  a  de  facto  belligerent,  72 

Conscription,  origin  of,  12;  in 
Confederacy,  18;   in  Civil  War, 

19 

Contributions,  see  Requisitions  and 
Contributions 

Control,  correlative  of  obedience 
{q.v.),  I 

Court- Martial,  different  kinds,  37; 
procedure  of,  37;  jurisdiction, 
39;  effect  of  sentence,  39;  re- 
vision, 40;  drum-head,  41; 
procedure  to  test  jurisdiction, 
44;  power  of  civil  court  to  in- 
quire into  jurisdiction,  54;  di- 
rect review  impossible,  57;  con- 
current jurisdiction  with  civil 
courts,  59;  validity  of  judgment 
oft  57»  63;  jurisdiction  over 
prisoners  of  war,  82;  jurisdic- 
tion over  captured  traitor,  83; 
exclusive  jurisdiction  of,  in 
friendly  country,  91;  in  enemy 
country,  92 


196 


INDEX 


Courts,  see  Civil  Courts,  Military 
Courts,  Court  Martial,  Military 
Commission,  and  Provost  Court 

Custom,  see  Tradition 

Damages,  mitigation  of,  135 
Draft,  see  Conscription 

Emergency,  see  Liability 

Enemy,  public,  64;  citizen  of 
hostile  state  as,  71;  trading 
with,  66;  licenses  to  permit 
trading  with,  67 ;  non-com- 
batant and  belligerent,  73; 
evidence  of  enrolment,  76; 
resident  of  enemy  country  as, 
76;  resident  of  occupied  ter- 
ritory as,  78;  property  located 
in  country  of,  79;  duty  to 
remove  from  country  of,  80; 
resident  alien,  86;  resident 
alien,  jurisdiction  of  military 
courts  over,  88 

Enlistment,  voluntary,  9;  as  a 
change  of  status,  20;  effect  of 
fraudulent,  20 

Franc-tireur,  in  War  of  1870,  74; 
Wellington's  threat  regarding, 
75 


Government, 
cation 


Suits,    Ratifi- 


Indemnity,  see  Acts 
Injunction,    as    a    substitute    for 
martial  law,  164 

Liability,  of  officer  in  ministerial 
capacity,  46,  132 ;  of  officer  with 
discretionary  power,  47,  131, 
133;   as  affected  by  malice,  49; 


as  affected  by  circumstances  of 
peace  or  war,    52,     143,    151; 
emergency ;  see  Damages 
Lieber's    Code,    position    of,    in 
military  law,  32 

Malice,  see  Liability 

Malicious  Prosecution,  as  unlike 
suit  against  officer,  49 

Martial  Law,  different  kinds  of, 
36;  civil  courts  in  circumstances 
of,  150;  158;  in  battle  zone, 
157;  in  connection  with  state 
of  siege,  159;  as  mentioned  in 
constitutions,  161;  the  two 
phases  of,  167;  nature  of,  168; 
historical  considerations  respect- 
ing, 168;  different  views  of, 
174;  results  of  Petition  of 
Right,  175;  use  of  preventive 
martial  law,  175;  by  whom 
established,  185;  punitive 
whether  lawfully  possible,   185 

Military  Commissions,  in  military 
occupation,  102;  power  of,  103; 
use  of,  in  connection  with 
martial  law,  166 

Military  Courts,  as  administrators 
of  military  law,  3;  jurisdiction 
over  enemy  alien,  88;  see  also 
Court  Martial 

Military  Government,  in  our 
history,  97;  temporary  civil 
government,  1 00;  effect  of,  on 
municipal  law,  1 01;  provi- 
sional courts,  102;  power  of 
commissioner,  104;  moral  re- 
straints on,  105;  under  recon- 
struction acts,    106 

Military  Law,  kinds  of,  2,  3; 
uncodified  portions,  34;  see 
Military  Courts;  Articles  of  War 


INDEX 


197 


Military  Occupation,  as  rendering 
inhabitants  enemies  of  own 
country,  78;  as  a  question  of 
fact,  79;  jurisdiction  of  our 
courts  in  matters  arising  out  of, 
94;  effect  of,  on  allegiance,  98; 
see  Civil  Courts 

Militia,  congressional  power  over, 
7;  history  of,  11;  under  selec- 
tive service  law,  24 

Moratorium,  statute  of,  127 

Mutiny  Act,  nature  of,  28;  double 
aspect  of,  30;  principle  of,  in 
our  constitution,  30 

National  Guard,  see  Militia 

Obedience,  duty  of,  i ;  see  Control 

Patents,  see  Suits 

Petition  of  Right,  see  Martial  Law 

Pope,  General,  orders  in  Virginia, 

75 
Precedent,  see  Tradition 
Prize,  see  Capture 
Prohibition,  writ  of,  44n 
Provisional  Courts,  judgments  of, 

103 
Property,    see    Requisitions    and 

Contributions 
Provost  Courts,  as  mentioned  in 

Articles  of  War,  42 ;  in  military 


occupation,  102;    judgment  of, 
103 

Ratification,  by  government  of 
officer's  act,  123,  139 

Requisitions  and  Contributions, 
origin  of,  119;  commissioner's 
judgment  as  to  property  of,  121 ; 
power  of  civil  courts  to  review, 
122;  of  services,  125;  taking  of, 
in  time  of  emergency,  145;  see 
Capture 

Selective  Service,  law  of,  17; 
operation  of,  24;  function  of 
draft  board,  58 ;  see  Conscription 

Sentence,  see  Court  Martial 

Siege,  state  of,  see  Martial  Law 

Spy,  see  Articles  of  War 

State  of  Siege,  see  Martial  Law 

State,  questions  of,  5 

Suits,  against  officer  but  not  in- 
volving personal  liability,  136; 
on  patents,  137;  against  gov- 
ernment, 138,  146;  see  Liability 

Tradition,  evolution  of,  2 
Trading  with  Enemy,  see  Enemy 

War,  laws  of,  33;  see  Military 
Law;  what  is,  64;  power  of 
declaring,  64;  ratification  of, 
65;  declaration  of,  65n;  pris- 
oner of,  82;  crimes,  84 


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